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CONTESTED ELECTION CASE. 


SECOND DISTRICT OF FLORIDA. 


JESSE j: FINLEY 
against 

HORATIO BISBEE, Jr. 


OONTESTAITT’S BRIEF. 


R. O. Polkinhorn, Printkr, Washington. D. C, 






















































































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SECOND CONG. DISTRICT OF FLORIDA. 

JESSE J. FINLEY J 


vs. >■ 

HORATIO BISBEE, Jr. 


Contestant’s Brief. 

This is a case of contested election, and comes from 
the 2nd Congressional District of Florida, composed of 
the counties of Alachua, Baker, Brevard, Bradford, Clay, 
Columbia, Duval, Dade, Hamilton, Madison, Marion,Nas¬ 
sau, Orange, Putnam, Suwanner, St. Johns, and Volusia. 

It presents a mass of testimony, which, with the Notice 
of Contest, Answer and Exhibits, makes a very volumin¬ 
ous record; and, in order to facilitate the committee in its 
examination, I propose, after a general statement of the 
case, to take up each county in the district about which 
there is any dispute, separately, stating the questions 
which are presented in the pleadings, and giving con¬ 
venient references to the testimony as it appears in the 
printed record, and also the law as applicable to the tes¬ 
timony. 

General Statement. 

An examination of all the county returns, including 
predinct No. 8 (number 11, Pond) in the county of 
Clay, and the precincts of Johnsville and Darbyville in 













2 



the county of Baker, will show that the contestant was 
elected by a majority of five (5) votes, giving to the con- 
testee the benefit of two hundred and nineteen votes, 
which are alleged and proven to have been fraudulently 
counted for him at Archer precinct No. 2, in the county 
of Alachua. 

Whether the return from Clay County, including pre¬ 
cinct No. 8, number 11 Pond, and the returns from the 
precincts of Johnsville and Darby ville should be counted; 
and whether the entire return from the county of Ala¬ 
chua, or the return from Archer Precinct No. 2, in said 
last mentioned county, should be rejected, are questions 
raised in the pleadings, and will be fully considered 
when we reach the counties of Baker, Clay and Alachua, 
in the order of investigation above indicated. 

1. It will be insisted by the contestant, that the county 
return from Clay County, including the return from No. 
8, (number 11, Pond) shall be counted. 

2. That the returns from the precincts of Johnsville 
and Darbyville in Baker County shall be counted. 

3. That the entire county return from Alachua County 
shall be rejected on the ground of fraud on the part of 
two of the county canvassing officers. 

4. That in the event the county return of Alachua 
County is not rejected, then that the return from Archer 
Precinct, No. 2, in said county should be rejected on the 
ground of fraud and forgery, on the part of two of the 
election officers. 

It may not be improper to remark in this connection, 
that if the county return from Alachua County is re¬ 
jected, 1972 votes will have to be deducted from the 
vote of the contestee, and 1255 votes from the vote of 
the contestant ; and that if the return from Archer Pre¬ 
cinct No. 2 is* also rejected, 399 votes will have to be de¬ 
ducted from the vote of the contestee, and 141 votes 




AUG 23 190/ 

D> of D. 



3 


rom the vote of the contestant—unless the vote received 
by either of them in said county or at said precinct has 
been shown by other and satisfactory testimony. 

Clay County. 

The first question presented by the notice and answer 
is, whether the return from the County of Clay should 
be received and counted; and whether the return from 
precinct No. 8 (number 11 Pond), should not also be 
counted in addition to the return made by the county can¬ 
vassing board. 

Notice, p. 9; 

Answer, p. 15. 

Before proceeding to the consideration of this ques¬ 
tion, it is proper to state to the committee, that the county 
board canvassed and counted the returns from all the pre¬ 
cincts in Clay County except the return from precinct No. 
8, number 11 Pond, which precinct return they attached 
to their county return, with the statement that it had 
been rejected by them because there was no evidence 
before them that the inspectors of the election at that 
precinct had been sworn. And it is also proper to state, 
that in the first canvass made by the State board, they 
received and counted the return from that county as 
made by the county canvassers, and in their second can¬ 
vass they rejected the vote of the entire county. 

The county return was regular on its face and should 
have been counted as made by the county canvassers. 

County canvass, pp. 179, 180. 

That the return as made by the county canvassers of 
said county should be counted, was clearly required by 
the Supreme Court of Florida in the case of Drew vs. 
Stearnes. Associate Justice Westcott, in delivering the 
opinion of the court, says in reference to this very 
county, that 44 It follows from the view we have taken 
44 of the law, applicable to the powers and duties of the 


4 


“ State canvassers, that any statement of votes by the 
“ precinct inspectors which are not included in the can- 
“ vass made by the county canvassing board cannot be 
“ counted by the State board; the power of the latter 
“ being confined by law to the counting of only such 
“ votes as are duly returned by the county board; such 
“ votes cannot be legally included in the estimates of 
“ the State canvassing board.” 

Opinion of the court, p. 225. 

Language cannot be plainer than this; and yet the 
State board in their second canvass rejected the entire 
vote of Clay County in utter disregard of the decision 
of the court, and then with audacity which is rarely sur¬ 
passed, and by a gross, wilful, and wicked perversion of 
its plain and unmistakable meaning, pretended to find in 
that decision, warrant and authority for their fraudulent 
and dishonest action in refusing to count the county re¬ 
turns as it was made. 

It will be seen from an examination of the county re¬ 
turn that the returns from precinct No. 8 (number 11, 
Pond) were rejected by the county board because there 
was no jurat to the oath signed by the inspectors of elec¬ 
tion at that precinct. 

County return, p. 179. 

The testimony shows that the election at that precinct 
was fairly and honestly conducted, and that the inspectors 
were, in fact, sworn. 

Lyman Hall, pp. 24, 25; 

Budington, p. 26; 

Exhibits “ A ” and “ B,” p. 27. 

Even the fact that the inspectors of the election were 
not sworn, will not of itself, in the absence of fraud, 
render the election null and void. 

McCrary, Sec. 305, also, p. 59. 


5 


But in this case it is proven that the inspectors were, 
in fact, sworn. 

From the law and the facts of the case, it is confidently 
contended, that the vote of Clay County, including the 
return from precinct No. 8, (number 11 Pond) should 
be received and counted. 

The next question in regard to the vote of Clay County 
is raised by the answer of contestee, and is, whether there 
were twenty or any less number of votes cast for the con¬ 
testant in said county who were non-residents or under 
age. 

Answer, p. 20. 

I may here remark, that strictly accurate pleading 
would require that it should be alleged how many were 
non-residents, at how many were under age. 

The contestee attempts to show that one Elias Pad¬ 
gett, who resided in Duval County, voted at Clay Hill 
precinct in Clay County. 

The proof shows that there were two Elias Padgett’s 
in Clay County besides the one in question; and that 
one of them lived in about four miles of Clay Hill pre¬ 
cinct ; besides, the proof does not establish the fact satis¬ 
factorily that Elias Padgett, Sr., voted at said precinct, 
or any other precinct in the county; nor is it shown for 
whom he voted for Congress. 

G. N. Bardin, p. 502; 

R. B. Sullivan, p. ; 

¥m. Long, pp. 503, 504, 505. 

The mere statement by a witness that a voter was not 
a resident, without giving facts to justify the opinion, is 
not considered sufficient to throw out such a vote. 

McCrary, secs. 371, 372. 

After a vote has been admitted something more is re¬ 
quired to prove it illegal than to throw doubt upon it. 

McCrary, sec. 371. 


6 


But even if it had been shown that Elias Padgett was 
not a resident in Clay County, and that he voted in said 
county; it is not shoWn for whom he voted ; it is not 
shown that he voted for the contestant. 

It is attempted to be shown that one George H. Ker¬ 
sey, who, it is alleged, voted at Webster precinct, in 
Clay County, had not been in the State long enough to 
entitle him to vote. The testimony shows that he had 
been in Clay County from the month of February, 1876, 
(which was a sufficient residence in the county;) but, 
G. K. Bardin, a witness for the contestee, states, that he 
heard Kersey say, about the 10th or 15th of June, in the 
same year, that he had not been in the State long enough 
to entitle him to vote ; that he saw him afterwards going 
up to the polls at Webster precinct, and that he told wit¬ 
ness afterwards that he had voted, but witness does 
not know what ticket he voted. 

Wm. Long, p. 504, 505. 

If, indeed, Kersey voted at all, it must have been the 
opinion of the officers of the election that he was entitled 
to vote; and the law will presume that he was so entitled 
unless sufficiently rebutted. 

It is contended that his declaration made to Long, that 
he had not been in the State long enough—a declaration 
not made under oath, and probably on a loose and hasty 
calculation of the time he had beeu in the State, is«not 
sufficient to overcome the presumption in favor of his 
right to vote, nor is his unsworn declaration that he 
voted sufficient to establish that fact, and the poll list 
should have been produced, or it should be proven by 
some sworn witness who saw him vote. 

McCrary, sec. 272. 

Moreover, it is not shown for whom he voted for Con¬ 
gress, if, indeed, he voted at all. If Kersey was an ille¬ 
gal voter, he could have been compelled to testify how 


7 


he voted, and the contestee should have produced him 
as a witness. 

McCrary, sec. 196, p. 142. 

The right of Henry Green to vote is denied by the 
contestee. 

The testimony shows that Green left Clay County in 
1875, and did not return as much as six months before 
the election. 

B. F. Collier, pp. 500, 501. 

Bardin, the witness, says that he does not know that 
Green actually became a resident of another County. 

G. N. Bardin, p. 502. 

This testimony is not sufficient to show that Clay 
County was not the place of Green’s permanent abode. 

Evidence which might have been sufficient to put a 
voter to his explanation if challenged at the polls, is not 
deemed sufficient to prove a vote illegal after it has been 
admitted. 

McCray, sec. 371. 

Besides, it is not shown for whom Green cast his vote 
for Congress. 

The next question raised by the answer of the contestee 
is whether there were ten or any less number of votes 
cast for the contestant by persons who were not regis¬ 
tered, and by aliens who did not produce evidence of 
their right to vote; and whether there were thirty or 
any less number of votes cast at the precincts at Clay 
Hill, Webster, Hibernia, Ho. 11 Pond, and Kingsley’s 
Pond, that should be rejected from the count. 

Answer, p. 20. 

It is contended that the 'above allegation in the an¬ 
swer is not sufficiently specific, in that it does not state 
how many of the ten were not registered, or how many 
aliens, nor does it state at what precincts they voted; 
and, in that it does not state the ground upon which the 


8 


thirty votes or any of them should be rejected from the 
count. 

McCrary, sec. 344. 

Leaving this question with the committee, on the au¬ 
thority cited, I now proceed to examine the testimony 
offerred by the contestee in support of the allegation. 

0. A. Buddington a witness for the contestee, states 
that the name of W. C. Harris was striken from the regis¬ 
tration books of Clay County, October 9, 1876. 

Buddington, p. 603. 

The answer to this is, that if Harris voted, and his vote 
was received by the officers of the election, it is to be 
presumed, in absence of proof to the contrary, that he 
voted legally, and that he took the oath that his name 
had been improperly striken from the registration list, 
as the law requires. 

McCrary, section 371. 

Besides, it is not shown that W. C. Harris voted for the 
contestant. 

Mr. Buddington, a witness for contestee, also states 
that one Owen SwindeFs name was not found in the 
registration books, and that there is no appearance of its 
having been striken off. 

Buddington, p. 503. 

It may be true that SwindePs name was not on the 
registration list of 1876, and that there was no appear¬ 
ance of its having been striken off, for the registration 
list was a new one, made out on the late census returns, 
from which Swindel may have been omitted, and yet if 
he had registered at any previous time, and his vote was 
questioned, upon swearing that he had been registered 
and that his name had been improperly dropped, he 
would have had the right to vote ; and inasmuch as his 
vote was admitted by the inspectors, it will be presumed, 
unless the contrary is shown, that he was a legal voter. 


9 


Besides, it does not appear that he voted for the con¬ 
testant. 

Mr. Bnddington, the same witness, states that one 
Richard Ward was not on the registration list. 

Buddington, p. 503. 

All that has been said in regard to the vote of Swin¬ 
dell, may be applied to the case of Ward, and it may be 
added that the proof does not show that Ward voted for 
the contestant. 

All that witness Long states in regard’to the vote"of 
one Isaac Mays, is merely hearsay and conjectural, and 
does not establish any fact material in the case. 

Long, p.-. 

When either party insists that a vote should be de¬ 
ducted from those cast and returned for his competitor, 
the burden of proof is upon the party to show that the 
person whose vote is in question, voted, and that the vote 
was for his compeittor, and that the voter lacked some 
one ot the legal qualifications of a voter. 

Cessna vs. Myers , 42d Congress. 

Appendix to McCrary, p. 426-’7. 

Baker County. 

The first question presented by the pleadings in regard 
to this county is, wdiether the returns from the precincts 
of Johnsville and Darbyville in said county, were im¬ 
properly rejected by the board of State Canvassers? 

Notice of Contest, specifications 3,4, 5; pp. 7,8,9. 

Answer of Contestee, p. 15. 

An examination of the testimony will disclose the fact 
that there were two different returns made from this 
county—one by the judge of the County Court, with 
the sheriff of the county and a justice of the peace, and 

2 



10 


the other by the clerk of the Circuit Court and a justice 
of the peace.' 

See county returns Baker County, pp. 189, 190, 
and 191. 

The law provides that the judge of the County Court, 
the clerk of the Circuit Court, with a justice of the peace 
called to their assistance, shall constitute the board of 
County Canvassers, and in case of the absence, sickness, or 
other disability of the county judge or clerk, the sheriff 
shall act in his place. 

Act of 1868, Sec. 24, Fla. Laws, p. 7. 

The evidence establishes the fact, that the clerk of the 
Circuit Court was neither absent, sick or disabled; but, 
on the contrary, was present and earnestly urging the 
judge of the County Court to meet him at the place ap¬ 
pointed by law for the purpose of canvassing the vote 
of the county. The evidence also discloses the fact, that 
the county judge fraudulently colluding with the sheriff 
to prevent said clerk from sitting and acting with said 
county judge on the Canvassing Board, and that said 
county judge, for the purpose of carrying out the fraudu¬ 
lent design of rejecting the returns from the precincts of 
Johnsville and Darbyville in said county, declined and 
avoided acting with the clerk as a member of the 
County Canvassing Board; and did, ,with fraudulent con¬ 
cealment, and at an improper hour, with the sheriff and 
a justice of peace, clandestinely and secretly enter the 
Clerks office, without the knowledge of said Clerk, and 
did then and there consummate his fraudulent design 
to exclude from the county return the votes of two en¬ 
tire precincts, where the testimony shows most clearly 
that the election was conducted fairly, honestly, and 
peaceably. Whereby, and by reason whereof, the re¬ 
turn made by the said county judge and sheriff was so 
tainted with fraud as to call for its entire rejection. 

M. I. Coxe, pp. 40, 41, 42, 43,, 44. 


11 


As Martin I. Coxe, the Clerk of the court, was present 
at the county seat, and was not only ready and willing, 
but anxious to enter upon the canvass of the county vote, 
all of which is proven to have been known to the county 
judge, it was a wilful and deliberate fraud upon the 
law, which he, as the Judge of a Court of Record (was 
sworn to observe and obey), to call the sheriff to his assis¬ 
tance in making the county canvass. 

Coxe, the clerk being neither absent or sick, or dis¬ 
abled, the sheriff had no authority to act, and could not 
legally act on the County Canvassing Bofird—he was a 
usurper. 

Act (Fla.) Aug. 6,1868, Sec. 24, Session, Act p. 7. 

Coxe, as clerk of the Circuit Court for Baker County, 
and the justice of the peace who acted with him, were 
legally qualified as county canvassers, under the laws of 
Florida, and because Driggers, the county judge, fraudu¬ 
lently refused or avoided acting with them, will not in¬ 
validate the return made by them. If it were otherwise, 
the fraudulent conduct of either the clerk or the county 
judge might deprive the people of an entire precinct or 
county of their votes. 

It is insisted, therefore, that the return made by the 
clerk and the justice of the peace, shall be received and 
counted, unless it is shown by the testimony in the 
case that the returns from the precincts of Johnsvjdle 
and Darbyville should be rejected. 

It is proper to observe, in this connection, that the 
board of State Canvassers treated the return made by 
the clerk and a justice of the peace as the true re¬ 
turn from Baker County in the first canvass made by 
said state Board. 

As to the two precincts of Johnsville and Darby ville, 
as I have before stated, it is most conclusively shown by 
the evidence that the election at both of them was fairly, 


i 


12 


peaceably, and honestly conducted, and was, in every 
way regular and conformable to law, and should be 
counted. 

W. C. Cobb, p. 45; 

Eowe, p. 38; 

Nobles, p. 39. 

The next question in regard to the vote in Baker 
County, is one presented by the answer of the contestee, 
in which he claims that the return from Johnsville pre¬ 
cinct in said county should be rejected, on the ground 
of violence, tlfteats of violence and intimidation, and be¬ 
cause the election was fraudulently conducted. 

Answer, p. 19. 

An examination of the testimony will show that not 
one particle of evidence has been produced to prove this 
allegation in the answer. 

The testimony of one Joseph D. Bryan, a witness for 
contestee, was doubtless intended to prove that there was 
intimidation at this poll; but he shows that when he 
offered to vote, his right to do so was challenged, upon 
the ground that he had been out of the county for more 
than six months; and I ask the committee to observe, 
that on his examination as a witness in this case, he is 
not asked, and does not swear, that he was only out of 
the county on a visit. 

• Bryan, pp. 485, 486. 

It is submitted, that the intimidation charged is not 
sufficiently alleged, because it is not averred that a suf¬ 
ficient number of voters were prevented from voting to 
have varied the result of the election, and that even if it 
had been so alleged, the testimony shows that such was 
not the fact. 

McCrary, secs. 417-424-430. 

The next question raised by the contestee in his an¬ 
swer is, whether seventy-five or any less number of votes 


13 


cast in Baker County should be rejected, on the ground 
that they were not registered in compliance with law. 

Answer, p. 19. 

It is contended that the contestee should have alleged 
how many of such votes were cast at each of the pre¬ 
cincts named. 

McCrary, sec. 344. 

To support the allegation thus loosely made, it is at¬ 
tended to be shown that six of such votes were cast at 
the precinct of Johnsville, eight at the precinct of 01 us- 
tee, and twenty-two at the precinct of Darbyville—in all 
thirty-six. 

Howell, p. 542. 

There is no allegation in the answer to authorize an 
inquiry as to any number of such votes (even if any ex¬ 
isted) as were cast at Olustee, and it may here be added 
that the testimony does not show where such alleged 
persons voted. 

The evidence must be confined to the point put in 
issue by the pleadings. 

McCrary, sec. 306. 

How let us examine the testimony on this point. 

At and before the election, Martin J. Coxe was clerk 
of the Circuit Court for Baker County, and John W. 
Howell w T as his regular deputy. 

Coxe, p. 40. 

Howell, p. 542. 

Coxe, as such clerk, appointed ¥m. H. Cougleton as 
special deputy to register votes. 

Coxe, pp. 54, 55. 

Cougleton, pp. 55, 56. 

Cougleton was sworn as such deputy by John W. How¬ 
ell, and registered about thirty or forty votes, to all of 
whom he administered the registration oath. 

Cougleton, p. 56. 




14 


Howell, as deputy clerk, had charge of the registra¬ 
tion hooks, and registered all who <?ame to him and took 
the oath required by law, until the books were closed. 

Howell, p. 541. 

Coxe, the clerk, sent to Howell, his deputy, from 
three to ten names, with a note stating that he had reg¬ 
istered them, and Howell entered them on the book as 
instructed. 

Howell, p. 542. 

How if you subtract from thirty-six voters mentioned 
by Howell, the eight which he states voted at Olustee 
(about which there is no allegation in the answer of the 
contestee), you have only twentj'-eight remaining, and 
the testimony shows conclusively that W. H. Cougleton 
who was also duly appointed a registering deputy clerk, 
registered more than twenty-Sight voters, and adminis¬ 
tered to them the registration oath. While the only 
testimony to support the allegation made in the answer 
is the loose and erroneous opinion of Howell, who testi¬ 
fies in behalf of the contestee. 

Coughton, p. 56. 

Howell also states, at a different and subsequent ex¬ 
amination, that there were five others, viz : H. T. Rich, 
Elliott C. Richardson, Josiah Hobson, Daniel Shaw, and 
John A. Roberts, who were registered in the same way 
that the 36 were registered; that is to say, they were 
registered by the other deputies, and entered on the regis¬ 
tration books by him. 

Howell, p. 381. 

Howell testifies that of these five, John T. Ritch, and 
John A. Roberts, were registered by Cougleton ; and 
Elliott C. Richardson, Daniel Shaw, and Josiah Dobson, 
were registered by Elisha W. Driggers. 

Howell, p. 381. 

Howell furnished the form of oath to be administered 


* 


15 


to persons offering to register, and entered the names on 
the registrative hooks. 

Howell, p. 545. 

It does not appear for whom any of them voted for Con¬ 
gress ; except it may be Daniel Shaw, who says he voted 
the democratic ticket. 

Shaw, p. 383. 

Howell states that John C. Miller, one of the 36, came 
to him to register, but he did not register his name 
because the time had expired. 

Howell, p., 544. 

But it is not shown that at the time he voted he did 
not swear that he had been registered, and that his name 
had been improperly dropped from the list. 

When a person has voted the presumption arises that 
the sworn officers of the election rightfully received his 
vote, and it devolves upon the candidate who objects to 
his vote to show that he was an illegal voter; and this, 
although it involves the difficult task of proving a nega¬ 
tive. 

McCrary, secs. 87, 62, 91. 

In regard to John A. Roberts, it is attempted to be 
shown for whom he voted for Congress. This will not 
be allowed unless it be first shown that he voted illegally, 
which is not done. The proof shows that he was regis¬ 
tered by Cougleton, a deputy clerk. 

McCrary, secs. 194, 195, 196. 

The only other allegation in the answer of the contes- 
tee is, that ten votes counted for the contestant should 
be rejected on the ground of non-age, non-residence, and 
alienage. 

Answer, p. 19. 

It is sufficient to say that no attempt whatever is made 
to prove this allegation. 

The testimony shows that W. H. Cougleton, was ap- 


16 


pointed and sworn as a special deputy clerk to register 
voters; that he was furnished by Howell with the form of 
oath to be administered to persons offering to register; 
that he registered 30 or 40 persons ; that Elisha W. Drig¬ 
gers acted as a special deputy clerk for registering pur¬ 
poses ; that he was also furnished by Howell with the 
form of oath for persons offering to register; that Cougle- 
ton was a democrat; that Howell and Driggers were re¬ 
publicans ; that Driggers was county judge ; that Howell 
was deputy clerk and the republican State Senator; that 
Howell, as deputy clerk, had theposses3ion and control of 
the registration books, and as such deputy clerk entered 
on the registration books the names registered by both 
Cougleton and Driggers, and being a leading republican 
politician and a republican State Senator, it cannot be 
supposed that he would register democratic votes illegally, 
especially as he was a sworn officer, and bound by his 
official oath to the faithful and honest performance of 
his official duty. 


Hamilton County. 

In regard to the election in this county, it is proper to 
state to the committee, in the first place, that the return 
from Jasper precinct, Ho. 2, was received and counted 
by the board of county canvassers, but that said precinct 
returns was rejected by the board of State Canvassers, 
in their first canvass made on the 6th day of December, 
1876, and that under the mandate of the Supreme Court 
of Florida, they included and counted it in their second 
canvass made on the 27th day of December, 1876. 

State canvass, Dec. 6th, 1876, p. 206. 

State canvass, Dec. 27tli, 1876, p. 208. 

The contestee, in his answer, asks that the entire re¬ 
turn from Hamilton County be rejected on the following 
grounds, to wit: 


17 


1. That the registration of electors in said county, is 
false and unreliable. 

2. That more votes were cast and counted, than there 
were qualified voters in the county. 

3. Because the county canvass was illegal and void. 

Answer, p. 17. 

In answer to this, it is sufiicient to say, that this is no 
evidence to support and establish their allegations or any 
of them. 

The contestee in his answer, also asks, that the returns 
from Jasper precinct, No. 2, be rejected. 

1. Because the canvass of the vote at that precinct, was 
not made by the inspectors. 

2. Because the ballots were tampered with by third 
parties, and left in the possession of unauthorized persons. 

3. That the canvass was adjourned from day to day, 
without cause. 

Answer, p. 17. 

The testimony offered by the contestee, does not sus¬ 
tain either of these allegations, while on the other hand, 
the testimony in behalf of the contestant, shows them to 
be untrue. 

Wm, IT. Reynolds, testifies, that he was United States 
Supervisor at Jasper precinct, No. 2, and was present at 
that poll during the entire day of the election ; that the 
election was fairly and honestly conducted, according to 
law; that it was fairly and honestly conducted during 
the count; that the polls were closed at sundown ; that 
the counting commenced soon thereafter, and closed 
about five o’clock the next morning. 

Reynolds, pp. 59, 60. 

Reynolds, also testifies, that the return of Jasper pre¬ 
cinct, No. 2, was received and counted by the County 
board, and was rejected by the State board, 

Reynolds, p. 60. 

3 


18 


Reynolds further testifies that, at Jasper precinct, No. 
2, the contestant received three hundred and twenty (320) 
votes, and the contestee received one hundred and eighty- 
four (184) votes, and further, that the entire vote of the 
county was 943, of which, the contestant received 614, 
and the contestee 329 votes. 

Reynolds, p. 60. 

W. J. J. Duncan, testifies, that the election at Jasper 
precinct, No. 2, was a fair election ; that the return from 
thi3 precinct, was rejected by the State board in their 
first canvass, and afterwards counted in their second can¬ 
vass, under the order of the Supreme Court of Florida. 

Duncan, p. 66. 

Thomas N. Bell, who was judge of the county court, a 
member of the county canvassing board, and the repub¬ 
lican candidate for the State senate, says, that he was 
present at the election at Jasper precinct, No. 2, a part 
of the time during the counting of the votes ; that he 
acted as one of the county canvassing board ; that the 
return from said precinct was counted; that there was 
no objection to it, and that he saw nothing fraudulent 
in the election. 

Bell, pp. 62, 63. 

This witness also testifies, that Exhibit “ A,” and Ex¬ 
hibit “B,” filed with his testimony, contains a true state¬ 
ment of the vote at Jasper precinct, No. 2, and of the 
vote of the county for Congress. 

Bell, pp. 62, 63, 64, 65. 

An examination of the testimony for both the contes¬ 
tant and contestee will show that there was no unfair¬ 
ness or fraud at Jasper precinct No. 2, either attempted 
or accomplished; and I respectfully invite the attention 
of the committee to the testimony of the several witnesses 
introduced by both parties, and who testify on this point. 
The examination will show that the contestee has utterly 


/ 


19 


failed to establish fraud or unfairness, while the witnesses 
for the "contestant prove that every thing was fair and 
honest in both the election and canvass at said precinct. 

f Reddy, p. 516. 

| Raulerson, pp. 516-’17. 

Witnesses for Contestee . { Smithson, pp. 517-18-19-20. 

| Beil, pp. 520-’21. 

^Taylor, pp. 521-’22-’23. 


Witnesses for Contestant. 


"Reynolds, pp. 59-60- ? l_’2. 
Bell, pp. 62-’3. 

Duncan, p. 66. 

Taylor, pp. 66-’7. 

Fryar, pp. 68-’9-70. 
Ancrum, pp. 70-’l-’2. 
Blackwell, pp. 72-’3-’4. 
Altman, pp. 74-’5. 


The contestee, in his answer, asks that twenty (20) 
votes received and counted for the contestant at the sev¬ 
eral precincts in Hamilton County, be rejected on the 
following grounds, to wit: 

1. Because they were cast by non-residents of the 
county. 

2. Because they were not registered voters. 

3. Because they were minors. 

4. Because they were foreigners. 

Answer, p. 17. 

It is respectfully submitted to the committee, that the 
above allegation is radically defective, in that it does 
not specify at what particular precincts the alleged ille¬ 
gal votes were cast. It is contended that the place or 
precinct where the illegal votes were polled, should have 
been set forth in the specifications, and also the number 
objected to on the ground of non-residence, the number 
who were not registered, the number who were minors, 
and the number who were foreigners. 

It seems to be settled, says Mr. McCrary, by the de¬ 
cisions of the House of Representatives, that a notice is 




20 


good under the law, if it specify the number of illegal 
votes, for whom polled, when and where polled, without 
specifying the names of the illegal voters. 

McCrary, sec. 344; citing 1 Bartlett, 152,177, 223. 

James W. Gray, in behalf of the contestee, testifies, 
that Andrew G. Connell and Gilbert Connell lived in * 
Hamilton County, Florida, and moved to Georgia the 
latter part of 1874, or the first of 1875, and came back 
to Florida the latter part of 1875. 

Gray, p. 506. 

Andrew G. Connell, a witness introduced by the con¬ 
testee, states that he has residedin Hamilton County, Flor¬ 
ida, for the last ten years, and that twelve months of that 
time he has been ofi* in Georgia; that he went to Geor¬ 
gia some time in December, 1874, and got back to Florida 
on the 5th day of November, 1875, and was at his place 
in Hamilton County on the 7th day of November, 1875, 
and that his son Gilbert Connell came back with him. 

Connell, p. 507. 

The contestee attempts to prove by A. M. Knoles, that 
Joseph A. Ellis and Joel Highsmith voted at precinct 
No. 4 in Hamilton County. This witness states that 
Ellis resided most of the year 1876 in Georgia, that he 
moved to Georgia in January, 1876, that Highsmith 
worked with witness part of the"year 1876 ; then married 
and moved near the Georgia line, and continued to move 
up and finally settled at Fort Gilmore, in Georgia, that he 
heard Ellis say he moved to Georgia, merely on a fishing 
expedition, and for his health ; and witness states, that 
Highsmith stayed in Georgia but a very short while. 

Knoles, pp. 507, 508. 

Now, Joseph A. Ellis, himself, who is also introduced 
by the contestee, swears that his permanent home had 
been in Hamilton County, Florida, nearly three years ; 
that he was absent in Georgia, at his son’s place, about 


21 


three months; that he went there for the benefit of his 
wife’s health, &c. 

Ellis, p. 509. 

Ellis states that Highsmith had been a citizen of the 
State of Florida, and Hamilton County, for the last eigh¬ 
teen months, and thinks (though not positive) that he 
had lived in the county for several years. 

Ellis, p. 509. 

The contestee introduces W. J. J. Duncan and W. H. 
Brown, and J. D. Land, as witnesses to prove that J. D. 
Land and Benj. Bowman were not citizens of Hamilton 
County. 

It will he seen from an examination of the testimony 
of Duncan and Brown, that it does not prove the non¬ 
residence of either Land or Bowman; while the testi¬ 
mony of Land shows that he came to Florida more than 
twelve months before the election with the intention of 
remaining, and did remain. 

Duncan, p. 510; 

Brown, pp. 511, 512: 

Land, pp. 513, 514. 

The contestee, in his answer, asks that five citizens be 
added to his vote in Hamilton County, because they 
offered and desired to vote for him and were not per¬ 
mitted to do so. 

Answer, p. 17. 

In order to require the contestant to make defence 
against this specification in the answer, it was essential 
to have alleged that these five citizens were lawful voters 
in the county of Hamilton, and how, and by whom, they 
were prevented from voting. 

The only testimony offered in support of this allega¬ 
tion is that of Thomas Beddy, from which, it appears, 
that the reason why he did not vote was because he de¬ 
clined to take the oath. If he knew that he had a right 


22 


to vote, it was his duty as a freeman to take the required 
oath, as others had to do whose votes were questioned. 
If he declined to take the oath, when he was entitled to 
vote, he did it in his own wrong, for he testifies that 
Maj. Tenton, one of the inspectors, told him by taking 
the oath he could vote ; and that he knew what the oath 
was is shown by his own statement that he heard the 
oath administered to others. 

Reddy, pp. 514, 515, 51b. 

David Fryar testifies that Maj. Tenton, one of the in¬ 
spectors, told Reddy if he would take the oath he could 
vote. 

Fryar, p. 69. 

The contestee, in his answer, asks that twenty-five 
votes be deducted from the contestant’s vote in Hamil¬ 
ton County because they were cast by persons who were 
coerced and intimidated to vote against their will, and 
who otherwise would have voted for him. 

Answer, p. 17. 

This specification is not sufficiently explicit. It is too 
general. It should have alleged at what precinct or pre¬ 
cincts they voted under intimidation; and should also 
have alleged that the number so voting was sufficient to 
have changed the result. 

McCrary, secs. 416, 417, 430. 

But, whether the allegation be sufficient in law or not, 
it is enough to say that the contestee has not even at¬ 
tempted to establish its truth. 

Having shown that the entire vote of Clay County, in¬ 
cluding the return from precinct Ho.8 (number 11 Pond) 
should have been counted, and that the returns from the 
precincts of Johnsville and Darbyville, in Baker County, 
and from Jasper precinct, Ho. 2, in Hamilton County, 
should also be counted, the following tabular statement 
as shown, by the county returns, will present the actual 
and true vote of the district: 


23 


Counties. 

Whole No. of votes. 

For Finley. 

For Bisbee. 

Madison 

2,603 

1,082 

1,521 

Suwannee 

1,085 

629 

456 

Hamilton 

943 

614 

329 

Columbia 

1,618 

901 

717 

Alachua 

3,242 

1,255 

1,972 

Bradford 

906 

706 

199 

Baker 

381 

238 

143 

Nassau 

1,464 

670 

794 

Duval 

3,803 

1,468 

2,331 

St. John 

, 839 

508 

331 

Putnam 

1,196 

617 

579 

Marion 

2,510 

962 

1,548 

Volusia 

646 

474 

172 

Orange 

1,120 

926 

194 

Brerard 

167 

111 

56 

Dade 

13 

5 

8 

Clay 

441 

315 

126 


22,957 

11,481 

11,476 



11,476 



Finley’s majority. 5 

See printed record, pp. 179 to 204. 


From the foregoing tabular statement, which is fully 
verified by the county returns, (provided you add to the 
return from Clay County the vote which was cast at pre¬ 
cinct No. 8, number 11 Pond, and which is conclusively 
shown should be done,) it will be seen that the contes¬ 
tant received a majority of five (5) votes in the district. 
And just at this point in the argument, I would direct 
the attention of the committee to the fact that the mo s t 
scrutinizing examination of the entire testimony in this 
case will fail to discover any evidence of unfairness, dis¬ 
honesty, or fraud, in the conduct of the election at any 







24 


of the precincts in the entire congressional district, ex¬ 
cept at the Archer precinct, Ho. 2, in the county of 
Alachua, where, as the evidence will show, 219 votes 
were fraudulently counted for the contestee, thus giving 
him a majority of 258 at that precinct, where, in fact, 
his majority was only 39 votes. 


Alachua County. 

Having shown that the entire vote of Cla}' County, 
including the return from precinct Ho. 8, number 11 
Pond, and also that the returns from the precincts of 
Johnsville and Darbyville, in Baker County, and of Jas¬ 
per precinct, Ho. 2, in Hamilton County, should be 
counted; and having shown that the contestant did 
actually receive a majority of five votes in the district, I 
will now proceed, in pursuance of the notice, of contest, 
to show that the canvass and return of the Board of 
County Canvassers for Alachua County should be re¬ 
jected on the ground of fraud. 

1. It is alleged, in the notice of contest, that the election 
at Archer precint, Ho. 2, in said county, was irregularly, 
illegally, and fraudulently conducted, canvassed, and re¬ 
turned ; it appearing that the action of a majority of the 
County Board, on the 11th of Hovember, and thereafter 
until it adjourned, was unfair, unjust, and illegal, and in 
fraud of the election laws of the State, and of the rights 
of the contestant in the premises; because it was shown 
that the return from that precinct was not true, and that said 
County Board counted and canvassed the votes as con¬ 
tained in said false and forged returns, and included them 
in their county returns. 

Hotice of contest—specifications 5 and 10, pp. 2, 
3, 5. 

The Board of county canvassers was composed of L. 


A. Barnes, the then sheriff, Irving E. Webster, the then 
Circuit Court clerk, and W. IT. Belton, a justice of the 
peace (the sheriff officiating in the stead of the County 
Judge, who was a candidate for the State Legislature). 
Webster, pp. 108, 109. 

Now, as surprising as it may seem, two of the three 
county canvassers, to wit, Webster and Belton, fully 
sustain by their testimony the allegation of unfairness 
and fraud in the county canvass, as made in the contes¬ 
tant’s notice. And it will not escape the observation of 
the committee, that when the contestee comes to examine 
L. A. Barnes, sheriff, who was the third member of the 
Board, he does not attempt to rebut the testimony of 
Webster; nor does he ask him any question in regard to 
the matter in his examination in chief, so as to expose 
him to the trial of a cross-examination. 

Webster, a republican member of the county board, 
when examined in behalf of the contestant, says, in his ex¬ 
amination in chief, that, “ from all he observed and as¬ 
certained during the County canvass, from the returns 
and other evidences from Poll No. 2, at Archer, he did 
think that there was fraud committed there. 

Webster, p. 105. 

Now, in his cross-examination by the contestee, he 
betrays a party bias, and says he thinks the republican 
candidates were injured by the fraud, but makes an im¬ 
mediate qualification by saying he does not think the 
majority for the republican candidates would have been 
greater; but means that the number of votes was less 
than it would otherwise have been. 

Webster, p. 107. 

Now, this testimony alone, unaided by any corrobora¬ 
tion, is sufficient to establish the fact that, when Web¬ 
ster, as a member of the county board, counted and in¬ 
cluded in the county return the return from Archer pre¬ 
cinct, No. 2, he knew it was tainted with fraud, 

4 


26 


But, in his re-direct examination, and when closely 
questioned on this point, he made a clean breast of it, 
and admitted, and did swear, that the “ evidence before 
the board of county canvassers did all tend to show 
a fraudulent increase of the republican vote after the precinct 
canvass.” 

Webster, p. 108. 

Wm. H. Belton, also a member of the County Board, 
testifies that as such member he rejected the return from 
Archer precinct, ]STo. 2, and sent up a minority report to 
the State Board, setting out his reasons for rejecting said 
precinct return, which were— 

1. That the official certificate of the result of the elec¬ 
tion at that precinct was filled up, and the names of the 
Inspectors and clerk signed thereto, all in the same hand¬ 
writing; and that the hand-writing was that of Thomas 
H. Vance, the clerk of the election at said precinct. 

2. That the certificate did not correspond with what 
purported to be the poll-list—the certificate giving 540 
votes, and the poll-list only 535, while the entire num¬ 
ber of ballots in the box was only 277. 

Belton, p. 131. 

Thus it will be seen that Webster and Belton sub¬ 
stantially and strongly corroborate each other, not only 
as to the fraudulent character of the retnrn from Archer 
precinct, No. 2, but also to the fact that fraud and for¬ 
gery were patent on the face of the return itself. 

The certificate and poll-list were open to the inspec¬ 
tion of Barnes, the other member of the County Board. 
It was his sworn duty to examine them, and it needs no 
argument to show that he was cognizant of the fraud in 
the county canvass as well as Webster and Belton, and 
participated in it to the same guilty and criminal 
extent as did Webster. Both Webster and Barnes when 
they included said precinct return in their county return, 
knew it to be false, fraudulent, and forged. 


27 


While the duties of canvassing officers are purely min¬ 
isterial, it does not follow (says Mr. McCrary) from this 
doctrine that canvassing officers must receive and count 
whatever purports to be a return; and in cases where it 
appears upon its face that it is false or fraudulent, and 
unreliable, they have the power to reject it, and should 
reject it. They must decide on the face of the paper 
itself, and cannot go behind the return to take extrinsic 
testimony. 

McCrary, secs. 81, 82, 83. 

It is for the committee to consider and determine the 
legal effect of this proven fraud on the part of a majority 
of the County Canvassing officers. 

If the same fraud were proven in regard to the return 
of the canvassing officers of any voting precinct, it is 
clear that the return would have to be rejected. 

McCrary, secs. 440, 441, 436. 

On the same principle, and for the same reason, the 
same rule should apply to a fraudulent county return. 

It does not show what the true vote of the county was, 
and is, therefore, unreliable. 

The return of a precinct is only evidence of the result 
of the election at that precinct; the return of a county 
board is only evidence of the result of the election in 
that county; they are both treated as evidence; but, as 
we have seen, either or both may, and should, be rejected, 
if shown to be fraudulent and unreliable. 

If unreliable, it must be rejected, and other evidence 
resorted to in order to ascertain what the true vote was. 

Does the evidence in this case,independent of the county 
return, show what the true vote of the county was ? For, 
if it be possible from the evidence in the case, to ascer¬ 
tain what the true vote was, then the entire vote of the 
county should not be rejected, whereby many lawful 
voters would be deprived of their votes. 


28 


If the evidence showed the true result of the election 
at each and every precinct in the county, then the Com¬ 
mittee and the House would be able to determine what 
the true vote was. 

But there is no evidence in the record that shows what 
the actual vote was at the several election precincts in 
Alachua County; and as the true vote of the county 
cannot be ascertained either from the county return or 
other testimony in the case, it follows that the entire 
vote of the county will have to be rejected, upon both 
principle and authority. (There are fourteen precincts 
in the county, and only six returns offered in evidence— 
Webster, p. 870.) As evidence of the result, the return 
must stand until such facts are proven as to clearly show 
that it is not true. When shown to he fraudulent or 
false, it must tall to the ground—McCrary, sec. 438. 

In this case the county return has been clearly shown 
to be false and fraudulent, and as there is no other testi¬ 
mony which shows what the true vote of the county was, 
the only alternative (though a hard one) is to reject the 
entire vote of the county. 

McCrary, sees. 437, 438. 

In concluding on this point in the case, I beg to say to 
the committee that if the rejection of the entire vote of 
the county can be avoided on any sound and established 
legal principles, I should be glad to see it done, as I do 
not wish to see honest voters deprived of their votes. 

It is alleged in the notice of contest, that 399 votes 
were illegally counted for the contestee at Archer pre¬ 
cinct Ho, 2, in Alachua County ; that the returns from 
said precinct wmre so irregular, false, and fraudulent, 
that it could not be ascertained what the true vote was . 
that 219 votes were falsely and fraudulently added to the 
vote of the contestee at said precinct; that the returns 
as received from said precinct, and opened, counted, and 


29 


canvassed by the county canvassers, were not true, and 
did not contain the true vote as cast at said poll, and 
therefore urges that the return from said precinct be re¬ 
jected. 

Notice, specifications 3-4-8, and 9, pp. 2, 9, 10. 

I now propose to make a careful analysis of the testi¬ 
mony, in order to show that the foregoing allegations 
are true, and that the return from Archer precinct ]N r o. 
2, was false, fraudulent, and forged. 

The return indicated that 540 votes were cast for Con¬ 
gress at that precinct, and that of that number the con - 
testee received 399, and the contestant 141. 

low, if this return be true and free from fraud, it 
should be counted; if false or fraudulent, it must be re¬ 
jected as evidence of the result of the election at that 
precinct. 


Green II. Moore, a republican inspector of the election 
at that precinct, swears that there were, according to the 
tally-sheets and the poll list, only 318 ballots cast there, 
and that two of those, being folded together, were de¬ 
stroyed, leaving the vote at that poll 316. 

Moore, p. 84. 

If this be true, then the statement in the return that 
540 votes were cast there, was false. 

Moore’s testimony on this point does not stand unsup¬ 
ported, but is substantially and strongly corroborated by 
the testimony of Geiger, Blitch, Tucker, Dukes, and 
Edge, who swear that at the conclusion of the count, 
R. II. Black, another republican inspector, publicly an¬ 
nounced as the result, that Stearns had received 180 votes 
for governor, and Drew had received 136 votes for the 
same office ; and these being added together, make pre¬ 
cisely the 316 votes which Moore testifies were cast there, 


30 


according to the tally-sheets and poll list which were 
kept by Yance, the clerk at that precinct. 

Geiger, p. 96 ; 

Blitch, pp. 98, 99 ; 

Tucker, pp. 110, 111; 

Dukes, p. 113; 

Edge, p. 124. 

Blitch swears that the announcement made by Black 
of the result of the election at that precinct, corresponded 
with the tally sheets kept by Yance, the clerk. 

Blitch, p. 99. 

Tucker, the present sheriff of Alachua County, swears 
that he counted over the tallies with Yance, the clerk, 
and put down the total footings in a memorandum of his 
own, and as he did so, asked Yance if each result, so put 
down by the witness, was correct, and each time Yance 
told him that they corresponded and agreed with his own 
figures. 

Tucker, p. 110. 

Tucker is corroborated in this by the testimony of 
Moore, who states that when the result was announced, 
Tucker and others took it down on a piece of paper. 

Moore, p. 84. 

Now, Yance himself admits, that an announcement of 
the result was made, but says there was but one ; that no 
unofficial announcement was made, and that the an¬ 
nouncement was as stated in the returns from that pre¬ 
cinct. I will show, before I am .done, that this man 
Yance forged the return, by filling up the blanks and 
signing the names of all the Inspectors in his own hand 
writing, and that he is not to be believed, especially when 
he is contradicted by five or six unimpeached and cred¬ 
ible witnesses. 

Yance, pp. 329, 330, 331. 


31 


This discrepancy between the return and the actual 
vote as officially announced, which has been so clearly 
proven, would of itself be sufficient to call for the rejec¬ 
tion of the return from this precinct, but, as will be seen, 
there is overwhelming cumulative proof given to show 
that the return was false, fraudulent, and forged. 

That there was a preconcerted design on the part of 
Black and Yance to commit a fraud at the poll, and that 
they made for themselves the opportunity to do so, is 
abundantly and clearly shown by the evidence. 

It appears from Moore’s testimony that the return was 
signed in blank, because Black and Yance seemed to be 
in a hurry, and called up the Inspectors to sign as they 
(Black and Yance) wanted to get out of the house. 

Moore, pp. 87, 88. 

Moore and Blitch testify that Yance took the papers 
away from the polls, and that Yance and Black went to 
Black’s house with the returns and the ballot-box. 

Moore, p. 83; 

Blitch, p. 99. 

Moore, Geiger, Blitch, and Darby, all testify that Black 
refused to allow the ballot-boxes from Ho. 1 and Ho. 
2, at Archer precinct, to be kept together and guarded 
by some of each party. 

Moore, p. 88 ; 

Geiger, p. 97; 

Blitch, p. 99; 

Darby, p. 101. 

If nothing wrong was intended, why did Black reject 
a proposition which was so manifestly fair ? 

Tucker swears that Black refused even to give him a 
statement of the vote at Archer precinct, No 2. 

Tucker, p. 111. 

If Black had no criminal design, why should he re¬ 
fuse so reasonable a request ? 


32 


Darby swears that after he had refused to let the ballot- 
box be guarded by some of each party, he (Black) re¬ 
fused to give him (Darby) a certified copy of the return. 

Darby, p. 102. 

Although Black knew he was suspected of dishonest 
designs, he was so resolved to carry out his dishonest 
purposes, and so intent on making sure of the oppor¬ 
tunity to do so, that he declined the repeated proposition 
to have the box guarded, and refused the reasonable re¬ 
quest twice made to furnish g written statement of the 
vote, giving no other reason for this strange conduct 
than the self laudatory declaration that “ he was an hon¬ 
est man.” 

Darby testifies, that Black had a body of colored men 
at his gate, who, not only refused to admit them into his 
house, but who forcibly refused to permit them to go in¬ 
side of his yard. 

Darby, p. 102. 

Moore says, that the returns were not in the ballot- 
box, and that only the tickets were put in the box, and 
Webster, (a republican,) swears, that only the tickets 
and the registration list were in the ballot-box when it 
was opened before the board of county canvassers. 

Moore, p. 83. 

Webster, p. 345. 

Moore testifies, that Vance and Black kept the ballot- 
box and the returns at Black’s house from 11 o’clock P. 
M., until 3 or 4 o’clock the next morning, when they 
took them to Gainsville on an extra train—Green R. 
Moore going with them on the same train. 

Moore, p. 84. 

Now both Moore and Vance testify, that the latter and 
Black arrived at Gainsville, (the county seat of Alachua 
County) about daylight, on the morning after the elec¬ 
tion. 


Moore, p. 84. 


Vance, p. 331. 


33 


Webster, the then clerk of the Circuit Court, testifies, 
that the ballot-box and returns from Archer precinct,No. 

1, were delivered to him, as such clerk, early in the morn¬ 
ing, on the day after the election, but that the box and 
returns from Archer precinct, No. 2, were not delivered 
to him, until noon on that day, and that key to box No. 

2, at Archer, was delivered to him between 8 and 9 
o’clock on that day. 

Webster, pp. 106, 104. 

If the returns from both polling places at Archer ar¬ 
rived at Gainsville at the same time, and the box and 
returns from Archer precinct, No. 1, were delivered to 
the clerk early in the morning, and the key to box No. 2, 
was delivered to the said clerk between 8 and 9 o’clock 
A. M., why was it that the ballot box and the returns 
from Archer precinct, No. 2, were not delivered to the 
clerk until 12 o’clock on the day after the election ? 

In this connection, and as explanatory of this delay in 
delivering the ballot-box and returns from Archer pre¬ 
cinct, No. 2, by Inspector Black, the testimony of Belton, 
where he says, “ that Black came into the clerk’s office 
on the day after the election, and obtained blank certifi¬ 
cates of election,” becomes very significant. 

Belton, p. 131. 

If, as Black and Vance state, the certificates were made 
out and signed at Archer, what honest use could Black 
have for blank certificates at Gainesville on the day after 
the election. 

Now, Moore testifies that after Black arrived at Gains¬ 
ville, he, (Black) took the ballot-box off in the direction 
of the residence of Capt. L. G. Dennis, and that after¬ 
wards, and on the same day, he, (Moore) was at Dennis’ 
house, and heard Dennis tell Black to take that ballot- 
box away from his house, as there had been a box thrown 
out for being brought to his house; that this was be- 
5 


34 


tween 9 and 10 o’clock in the morning, and at least three 
hours after Black went in that direction. 

Moore, pp. 84-85. 

The foregoing testimony not only shows that Black 
and Vance had the opportunity to fix up a false and 
forged return, but that they deliberately and systemati¬ 
cally made for themselves the opportunity for commit¬ 
ting the infamous fraud, which I will hereafter show was 
perpetrated by them. 

The testimony of Moore and Dukes establishes the 
fact that after the precinct canvass was closed, the bal¬ 
lots having been strung, were counted by Black, who 
said there were 277; and that they were put back in the 
ballot-box, which was locked ; Black taking the box, and 
giving Moore the key. 

Moore, pp. 84-83. 

Dukes, p. 112. 

The testimony of Moore and Dukes on this point is 
strongly, and, indeed, conclusively corroborated by that 
of Webster and Belton, who testify that when the ballot- 
box was opened before the county canvassers, it contained 
277 ballots, the precise number which Moore states was 
put back in the box, all being strung. 

Webster, p. 105; 

Belton, p. 131. 

It is also shown by the testimony of Webster, that 
when the ballof-box was opened before the County Board, 
that the ballots were not on the string. 

Webster, p. 105. 

This testimony discloses the fact that, while the num¬ 
ber of ballots in the box was not changed, the box had 
been opened, and the ballots taken off the string on which 
they had been strung. 

Now, it must be kept in mind, that the proof all shows 
that from the time the count was completed, and the an- 


85 


nouncement of the result was officially made by Black, 
the ballot-box was in the possession of Black and Vance; 
that both of them were Republicans, and that if the box 
was tampered with, it must have been by one or both of 
them, assisted in all probability by Dennis and Barnes, 
as will hereafter be shown. 

It is at this point and in this connection that a por¬ 
tion of the testimony of Geiger and Darby, becomes im¬ 
portant and significant. 

Geiger testifies that on the next day after the election, 
he met Black at the Gainsville depot, and that there was 
something in Black’s manner that induced him to be¬ 
lieve that he had been tampering with the ballot-box. 
He says that without being questioned, Black told him 
that Dennis and Barnes had tried to get him to pack the 
ballot-box, but that he had refused to do so. 

Geiger, p. 97. 

Darby states, that on the next day after the election, 
he was at his place of business on the railroad, and that 
as the train returned from Gainsville, it stopped there ; 
that Black, who was on the train, jumped off, came up 
to where he was, and after shaking hands, and without 
being questioned, volunteered to say, that Sheriff Barnes 
had said to him “ that box would have to be fixed,” but 
that he replied that those votes went in there, and that 
they would have to come out as they went in; that he, 
Black, was an honest man ; and Darby adds, that Black 
appeared to get off the train just to tell him this. 

Darby, p. 102. 

]Slo one can read this testimony without being con¬ 
vinced that a fraud was contemplated, and that the 
plan proposed was to stuff the ballot-box until the num¬ 
ber of ballots should be made to correspond with the 
number of names on the forged poll list, and that the 
matter was discussed between Black and Dennis and 
Barnes, two leading republicans in the county. 


36 


But Black knew that the ballots had been counted, 
strung, and put in the ballot-box at Archer, and that it 
was susceptible of positive proof that there were only 
277. He knew, moreover, that after the ballots had been 
counted and put back in the box, that he had locked it 
himself and bad given the key to Moore, and that it 
could be proven that the box was in his possesion from 
that time until he delivered it to the clerk at Gainsville. 

He also had, no doubt, a haunting recollection of the 
fact, that he had told Geiger sometime before the elec¬ 
tion, and when he thought Geiger was a republican, 
“ that he intended to pack the box if he had a chance to 
do it,” and knowing that if the number of ballots in the 
box should be changed from 277 to 535, his guilty com¬ 
plicity would be clearly established, he refused to com¬ 
ply with the request of Dennis and Barnes. 

Geiger, p. 97. 

It was for this reason, and not because he was “ an 
honest man,” that he declined to perpetrate the villany 
to which he was urged by Dennis and Barnes; and it 
was for the same reason that he refused to let it be done 
by others, while the box w r as in his possession. 

But not so in regard to the returns, and the evidence 
will show that these conspirators against the integrity of 
the ballot-box, did not only suppress the returns which 
had been signed in blank by the inspectors and clerk, 
but that they actually forged a return which was not 
signed by the Inspectors, Moore and Dukes, or by their 
authority. 

Vance, himself, swears that one of the duplicate re¬ 
turns was signed by Moore and Black; that Black signed 
for Dukes, who could not write, and that the other du¬ 
plicate return was signed by Black, for himself, and also 
for Dukes and Moore. 

Vance, p. 329. 


37 


But Belton swears that the return that was opened 
and canvassed by the county canvassing board was in 
the same handwriting—that is to say, that the blanks 
in the return were filled up, and the names of the in¬ 
spectors and the clerk were signed in the same handwrit¬ 
ing and it was the handwriting of Thomas H. Vance, 
the clerk of the election at Archer precinct, No. 2. 

Belton, p. 131. 

Webster, the then clerk of the Circuit Court, and one 
of the county canvassing board, testifies that the evidence 
before the board, did all tend to show a fraudulent in¬ 
crease of the republican vote after the precinct canvass, 
as already seen. 

Webster, p. 108. 

It may be insisted, that as the returns were filled up 
and signed in the handwriting of Vance, the man Black 
may not have been implicated in the forgery; but this 
charitable judgment cannot be extended to him, from 
the fact that the returns were^in his custody, and were 
delivered by him to the clerk of the Circuit Court, so 
that the suppression of one set of returns and the forg¬ 
ing of another, could not have been accomplished with¬ 
out his knowledge and connivance. 

Black and Vance both knew that the returns had been 
signed in blank, and that there was less danger in tam¬ 
pering with them than with the ballots in the box, and 
so they doubtless concluded that they would let the bal¬ 
lot alone, and take the chances, whatever they might be, 
of making it appear that the democrats had fraudulently 
abstracted from the ballot-box the number of ballots 
which would make the difference between 277, which 
were in the box, and the 535, as shown by their forged 
returns. And accordingly, we find it alleged in the 
answer, that the democrats tampered with the bal¬ 
lots in this box. But unfortunately lor them, the proof 


38 


shows that Black and Vance, who were both republicans, 
had possession of the ballot-box and returns from the 
time the precinct canvass was completed, until they were 
delivered by Black to the clerk of the court; and that 
the} 7 persistently refused to allow them to be guarded by 
a guard composed of both republicans and democrats. 

Having signally failed to prove that ballots had been 
abstracted from the box by the democrats, it became 
impossible to reconcile the difference between the num¬ 
ber of ballots in the box, and the number shown by their 
false and forged returns, and they were left to the morti¬ 
fication of detection in this blundering and clumsy at¬ 
tempt to perpetrate an act of villany. 

Moore, Dukes, and Fleming, all swear that the re¬ 
turns made from this precinct and county by both the 
County and State board, was false and fraudulent. 

Moore, p. 86; 

Dukes, p. 113; 

Fleming, p. 91. 

Moore testifies that according to the poll list only 
316 votes for governor was counted at that poll, that of 
this number, Stearns received 180, and Drew 136 (which 
added together make the 316), and that the vote for the 
other candidate was in about the same proportion, vary¬ 
ing some three votes. 

Moore, pp. 85, 84. 

Tucker, Dukes, Fleming, Geiger, Blitch, and Edge, all 
swear that Black announced the vote for Governor to be 
180 for Stearns, and 136 for Drew. 

Tucker, p. 110; 

Dukes, p. 113; 

Fleming, p. 90; 

Geiger, p. 96; 

Blitch, pp. 98-9; 

Edge, p. 124. 


39 


Tucker testifies that from an examination of the tally- 
sheet kept by Vance, the clferk, who admitted Tucker’s 
figures to be true, and corresponding with his own, it 
appeared that for Congress, Bisbee received 180 votes, 
and Finley 141, at said precinct. 

Tucker, p. 110. 

That the vote for the candidates varied only from two 
to five votes, from the vote for governor, is shown by the 
testimony of Dukes, Tucker and Blitch,as well as that 
of Moore. 

Dukes, p. 113. 

Tucker, pp. llO-’ll. 

Blitch, p. 99. 

It will be seen that the difference between 535 votes as 
indicated in the false and forged return, and 316, the 
number actually counted in the election of governor, is 
219, which last number of votes are alleged in the notice 
to have been falsely and fraudulently added to the vote 
of the contestee at that poll. 

Besides, Dukes swears that Black wrote his name to 
the certificate, and he (Dukes) touched the pen to make 
his cross mark; that when he put his cross mark to that 
paper he did not intend it should show that Bisbee had 
received 399 votes for Congress at that poll, but that he 
intended it to show that he received pretty much the 
same number of votes that Stearns received for governor, 
with a variance perhaps of a few votes, and that he in¬ 
tended it to show that result; and that Stearns received 
for Governor 180 votes, and Drew 136 votes, and that he 
never authorized his name to be signed to a return giving 
Stearns 399 votes for Governor. 

Dukes, p. 113. 

That the returns from Archer Precinct No. 2 were 
false and fraudulent has been so conclusively proven, 
that they must fall to the ground, and cannot be received 
as evidence of the result of the election at that precinct. 


40 


If the returns be rejected, we are led to inquire 
whether there is any other evidence in the case from 
which the true vote at that precinct can be deduced. 

The contestee attempts to show that he received 280 
votes at that precinct; but it must be borne in mind that 
out of the 280 who state that they voted the straight Ke- 
publican ticket, there were 237 who swear that they 
could not read, and that they did not read their tickets 
before they voted, and that very many of the tickets were 
given to them the night before the election, and that 
it is not proven that they voted the identical tickets 
which were given them. 

Allen Jones, a witness in behalf of the contestee, testi¬ 
fies that he distributed a large number of tickets to them 
the night before the election. 

Jones, p. 326. 

It is true that when a return, which is primary evi¬ 
dence, has been impeached and thrown aside for fraud 
or falsehood, it opens the door for the reception of sec¬ 
ondary evidence, to show what legal votes were cast; but 
such secondary evidence must amount to proof that the 
vote claimed was actually cast for the candidate claiming 
it; that the testimony creates a mere probability that the 
vote was so cast, is not sufficient. It must establish the 
fact. 

How, I will undertake to show from evidence in this 
case, that it was impossible that the contestee should 
have received 280 votes at Archer Precinct No. 2. 

It is alleged in the notice of contest that the contest¬ 
ant received 141 votes at said precinct, and is nowhere 
denied in the answer of the contestee, nor contradicted 
in the evidence, but is positively proven by the con- 
testee’s own witness as well as by Tucker and others. 

Vance, p. 330. 


41 


As has been already seen, the fact that there were bat 
277 ballots in the box has been clearly established. 

Moore, p. 84. 

Dukes, p. 112. 

Webster, p. 105. 

Belton, p. 131. 

The farther fact has also been proven, that according 
to the poll-list and tally-sheet there were but 316 votes 
cast for Governor, and but 321 votes for member of 
Congress at said precinct. 

Moore, p. 84. 

Dukes, p. Il3. 

Geiger, p. 96. 

Blitch,?pp. 98, 99. 

Tucker, p. 110. 

Edge, p. 124. 

Now, if it be true that there were only 277 ballots in 
the box, it is impossible that the contestee received 280 
votes at that precinct, for that would be three more votes 
than there were ballots in the box. 

Again, if it be true that there were only 321 votes cast 
for Congress at that precinct, and that the contestant re¬ 
ceived 141, it is impossible that the contestee should have 
received 280 votes, for that would be 100 votes more 
than were cast, as shown by the testimony. 

If the contestant received 141 votes, then it is not pos¬ 
sible that the contestee should have received 280, for 
that would show 144 more than there were ballots in the 
box, and that 421 were cast for Congress, when the testi¬ 
mony shows that there were but 321. 

The facts in this case that are best established, show 
that it was impossible that the contestee should have re¬ 
ceived 280 votes at said precinct; and being impossible, 
the testimony offered to prove it is wholly unreliable, 
and loses all its force under the contradictions with which 
it is confronted by the other and well established facts 

6 




*2 


in the case. In this view of the question, it becomes 
strikingly manifest that there would be great danger in 
accepting as proof, the simple statement of 237 unlettered 
men that they voted the straight republican ticket, but 
who at the same time testify that they could not read, 
and did not read their tickets; and especially will it be 
unsafe to act upon such testimony, when there is, in re¬ 
gard to most of them, a failure to show that they voted 
the identical ballots which were given to them as straight 
republican tickets. 

That the contestee received 280 votes at this precinct, 
cannot be accepted as true in the face of the well proven 
fact that, according to the tally-sheets as counted by Tuc¬ 
ker in the presence of Vance, the clerk of the election, 
and declared by the latter to be correct, the contestee re¬ 
ceived only 180 votes, and that the contestant received 141 
votes; and in the face of the further fact, as sworn to by 
Tucker and corroborated by other witnesses, that the 
foregoing figures corresponded with the announcement 
of the result after the count was completed. 

Tucker, p. 110. 

It is now proper to observe, that the only two wit¬ 
nesses produced by the contestee to prove that the re¬ 
sult was different, and that a different announcement of 
the result was made, are Black and Vance, who stand 
convicted on the testimony of having forged the returns 
from that precinct; and I feel that I might safely and 
without further comment upon it, treat it as wholly un¬ 
worthy of credit. Nevertheless, I will invite the atten¬ 
tion of the committee to the testimony of Vance, to show 
how he entangles himself in the meshes of his own false¬ 
hood. 

He testifies that a certificate of the result of the elec¬ 
tion at that precinct was made as follows, and that he 
signed it , viz : 


43 


Presidential Electors. 


F. C. Humphries, 899; 
Charles H. Pearce, 399; 
W. H. Halden, 399; 
Thos. W. Long, 399 ; 


Robt. Bullock, 136; 
J. E. Yonge, 136. 


Wilk. Call, 136; 

R. B. Hilton, 136; 


Congress. 


Horatio Bisbee, Jr., 398 ; 


J. J. Finley, 137. 


Governor. 


M. L. Stearns, 399 ; 


G. F. Drew, 136. 


Lieutenant Governor. 


D. Montgomery, 89'7; 


H. A. Hull, 138. 


State Senate. 


J. T. Walls, 399; 


T. F. Ring, 141. 


Assembly. 


L. G. Dennis, 398: 
W. X. Cessna, 397; 


P. B. Dudley, 138; 

J. M. Sparkman, 137. 


Yance, p. 329. 

How, the return itself, as well as the testimony of 
Webster, will show that by the return which Yance 
swears was made, and which he swears he signed, gave 
to Mr. Bisbee^- 399 instead of 398 votes, and to Finley 
141 votes instead of 137 votes, which added together will 
make five more votes than appeared on the forged poll 
list, which only contained, according to Yance’s own tes¬ 
timony, 535 names. 

Webster, p. 104; 

Return, p. 833. 

Yance swears that he signed a certificate of the result 
as above given. The certificate itself, and the testimony 
of Webster, show that he did not, but that he did sign a 
certificate giving to the contestee 399 votes, and to the 
contestant 141 votes; and now this bad man, after dis¬ 
covering the discrepancy between the return and the 
whole number which he swears was cast; this man, who, 
as it is seen, has sworn falsely, and who, with Black’s 


44 


connivance (as has been shown), forged the returns from 
this precinct, makes a lame attempt to account for the 
discrepancy by saying that the return which he signed 
was erroneous, and that the contestee received 398 votes 
and the contestant 137 votes, so as to make it agree with 
his oath that only 535 were cast at that poll. 

Vance, p. 330. 

And yet Vance, in whose handwriting the blanks in 
the return were tilled up, and who signed the names of 
all the inspectors and his own name to this forged cer¬ 
tificate, has the rashness to swear that there was a mis¬ 
take in the return, and that it should have been 398 
instead of 399 votes for the contestee, and 137 instead of 
141 for the contestant. 

He also swears there was a similar error in the return 
in regard to the election of State senator; and, by the 
same convenient swearing, he endeavors to cure that dis¬ 
crepancy. But he happens to overlook the fact that his 
forged return gives Dennis for the Assembly 398 votes, 
and Dudley, his competitor, 138 votes, which added to¬ 
gether make 536 votes, being one more than he swears 
were cast at that precinct—another discrepancy which he 
does not attempt to account for, but which, doubtless, he 
would have sworn off just as readily, if he had not over¬ 
looked it. 

I now invite the attention of the committee to the tes¬ 
timony of Samuel T. Fleming, which substantially and 
strongly corroborates that of Moore, Dukes, Tucker, 
Geiger, Blitch, and Edge as to the number of votes cast 
at that precinct. 

He testifies that he was at that poll all day—except 
about twenty minutes, when there was a recess for din¬ 
ner—and that he kept a list of all who voted from out¬ 
side the building, a copy of which list he produces 
(marked Exhibit A), which shows 305 names. He testi¬ 
fies that he was in a position all day to enable him to 


45 


see clearly the ballots as they were handed in by the 
voters to the inspectors at the ballot-box, and that he 
was not more than three or four feet from the inspector 
who received the votes; that he went there and exam¬ 
ined them for the express purpose of taking down the 
names of the persons who voted there, and is positive 
that he took down on his list the name of every person 
who voted from the outside of the window, where the 
ballots were received. He states that he does not know 
who voted from the inside of the building, except the 
managers; and that he did not see them vote, but says 
there could not have been many who voted from the in¬ 
side. He further states that the result, as he understood 
it was announced, did not exactly correspond with his 
list, hut was something near it; that it exceeded his list 
by eleven votes. 

Fleming, pp. 89, 90, 91. 

Moore testifies that the inspectors and clerk voted, to 
wit, Moore, Black, Dukes,*and Vance, which four being 
deducted from the excess over Fleming’s list, would re¬ 
duce such excess from eleven to seven votes; showing 
that Fleming’s statement that there could not have been 
many who voted from the outside was true. 

Moore, p. 89. 

How, Fleming’s character for truth and veracity is not 
only unimpeached, but is established by a number of re¬ 
spectable and credible witnesses. 

Griffin, p. 117; 

Gassett, p. 119 ; 

Wilson, p. 122; 

Edge, p. 124. 

The fact that 535 votes were not cast at that poll is 
most clearly established by evidence entirely indepen¬ 
dent of the testimony of Fleming; but I am unwilling to 


46 


pass by unnoticed the attempt that has been made to 
impeach the veracity of a perfectly truthful man. 

The attempt is made to showjthat his statement that 
he was only absent from the polls about twenty minutes 
when the dinner recess was taken, was untrue: and the 
attempt is also made to show that he was absent from an 
hour to an hour-and-a-half, and that voting was going on 
during that time. 

I will now take up the testimony of the witnesses of¬ 
fered for this purpose, one by one, and will show that 
they contradict each other, and are contradicted by other 
witnesses to such an extent, as to make their statements 
altogether unreliable. 

David Brown (colored) states, that Fleming was ab¬ 
sent from the polls twice that day, and about an hour 
each time. 

D. Brown, p. 258. 

Jacob Johnson (colored) says, that he was there all 
day, and that Fleming only left once, and was gone 
about an hour-and-a-half. 

J. Johnson, p. 288. 

David Brown says, that when Fleming left, he gave 
the pencil and paper used by him in taking down the 
names of those who voted to Mr. McKinney. 

D. Brown, p. 259. 

Shadrack Timmons (colored) says he gave the pencil 
and paper to McCurry. 

Timmons, p. 268. 

Jacob Johnson says that Fleming was gone an hour 
and-a-half, and that voting was going on and continued 
until he came back. 

Jacob Johnson, p. 288. 

Timmons says he was gone between a quarteKand a 
half hour. 

Timmons, p. 267. 


47 


Timmons says Flemming left between 10 and 11 o’clock. 

Timmons, p. 268. 

Johnson says he left about 12 o’clock. 

Johnson, p. 288. 

Edward Young (white) says it was about half past 12 
o’clock. 

Young, p. 289. 

Alfred Coleman says it was between 1 and 2 o’clock 
when Fleming left. 

Coleman, p. 296. 

Henry Peterson (colored) says it was between dinner¬ 
time and 3 o’clock train. 

Peterson, p. 291. 

George Washington (colored) says that he left about 
12 o’clock. 

Washington, p. 306. 

Isaac Sammons (colored) says he left between 1 and 2 
o’clock. 

Sammons, p. 318. 

Allen Purvis (colored) says it was about 12 o’clock. 

Purvis, p. 323. 

Alfred Coleman (colored) says, that Fleming was gone 
an hour-and-a-half, and that Voting was going on while 
he was absent, but that 'pretty much all had voted before he 
left , and that he left between one and two o'clock. 

Coleman, p. 297. 

That but little voting was done in the afternoon, is 
shown by the testimony of Fleming, Griffin, Gossett, 
and Smith, who corroborate the statement of Coleman, 
that pretty much all had voted before Fleming left for 
dinner. 

Fleming, pp. 91, 92. 

Griffin, p. 118. 

Gossett, p. 120. 

Wilson, p. 122. 




48 

Even if all on Fleming’s list (being 305) had voted be¬ 
fore he left and went for dinner, it cannot be supposed 
that 230 were cast during his absence, (which last num¬ 
ber is necessary to make up the 535 on the forged poll 
list) especially in the face of Coleman’s testimony, that 
“ pretty much all had voted before Fleming left.” 

If it took five hours to receive something less than 
305 votes when the voting was rapid, can it be supposed 
that 230 votes could be polled in an hour or hour-and-a- 
half, when the voting is shown to have become slack ? 

Simon Wright (colored) says positively, that the elec¬ 
tion was not stopped for dinner. 

Wright, p. 315. 

But Vance, Moore, Fleming, Geiger, Griffin, Gossett, 
Smith, and Edge, all swear, that there was a recess for 
dinner. 

Vance, p. 328. 

Moore, p. 87. 

Fleming, p. 90. 

Geiger, p. 96. 

Griffin, pp. 116, 117. 

Gossett, p. 119, 

Wilson, p. 121. 

Edge, p. 123. 

Isaac Sammons (colored) says, that while Fleming was 
aw T ay, Moore, Van je, and Black were receiving votes. 

Sammons, p. 318. 

How, Moore, one of the republican Inspectors swears, 
that in the recess for dinner. Black and Dukes went out to 
dinner together, leaving him and Vance, the republican 
clerk of the election, in possession of the ballot-box; 
that when Black and Dukes returned, Vance and Moore 
went out to dinner. 

Moore, p. 87. 


49 


Yance swears that he was absent that day about ten 
minutes, when they took a recess for dinner. 

Yance, p. 328. 

From this testimony it is clear that Moore, Black and 
Yance could not have been together and receiving votes 
during the recess for dinner, as stated by the witness 
Sammons. 

All the testimony in regard to Fleming being absent 
for an hour, or an hour and a half, and that voting was 
going on during that time, is completely disproved and 
overthrown by the well-established facts that only 321 
votes were counted for Congress, and only 316 votes were 
counted for Governor—that 305 of them were found on 
Fleming’s list, and that in addition, the four election offi¬ 
cers voted, which are not on Fleming’s list, making 309— 
that Fleming was only absent about twenty minutes— 
that the voting was suspended during the recess—that 
there was but little voting after the dinner recess—that 
Fleming was only absent once from the polls, and that 
no voting was done during Fleming’s absence from the 
polls. 

A careful examination of all the testimony bearing on 
this point cannot fail to satisfy an unbiased mind that 
the witnesses who have testified that Fleming was absent 
for an hour, or an hour and a half, and that voting was 
going on during that absence, swrnre loosely and at ran¬ 
dom, if, indeed, some of them were not guilty of delib¬ 
erate perjury. 

It is attempted to cast doubt upon the testimony of 
Dukes, Moore and Belton on account, as it is charged, 
of their having made contrary statements at different 
times. But I will show from the evidence that the pre¬ 
tended affidavit of Dukes, containing the contrary state¬ 
ment, was a forgery. I will show that the pretended 
affidavit of Moore, containing the contrary statement 
7 


50 


was never sworn to by him, and that the jurats attached to 
both of said pretended affidavits were false; and I will 
show that any contrary statement made by Belton was 
under threats, compulsion and fear. Furthermore, I will 
show that the material facts testified to by the said wit¬ 
nesses are corroborated in all material points by other 
and unimpeached witnesses, or that they stand uncontra¬ 
dicted. 

And, first, as to Dukes. 

Dukes says that Black, one of the Ispectors, read the 
names from the ballots when taken out of the ballot-box, 
and that Vance, the clerk of election kept the tally-sheet. 

Dukes, p. 112. 

This is not only uncontradicted, but is corroborated 
by Tucker, and one other witness. 

Tucker, p. 110. 

Dukes says that 'after the counting was over, either 
Black or Vance announced that Stearns had received 180 
votes, and Drew, 136 votes for governor. 

Dukes, p. 113. 

In this, Dukes is corroborated by— 

Tucker, p. 110; 

Blitch, p. 98;' 

Geiger, p. 96; 

Edge, p. 124. 

Dukes says that the candidates for all the offices got 
about the same number of votes respectively, as were re¬ 
ceived by the respective candidates for Governor. 

Dukes, p. 113. 

In this statement Dukes is corroborated by- 

Tucker, p. 110; 

Blitch, p. 99; 

Moore, p. 85. 

An effort is made to weaken Dukes’ testimony, by at- 


51 


erupting to show that before he was examined in this 
case, he had made an affidavit containing a different 
statement. 

I desire now to call the special attention of the com¬ 
mittee to the fact, that the only testimony offered to 
show that Dukes made such an affidavit, is that of Bel¬ 
ton, who in his last examination in this case swears, that 
his former statement, that Dukes signed the affidavit, 
was not true, but that his former statements were made 
under the influence of threats and fear of L. G. Dennis, 
who, as shown by the testimony, was the Republican 
leader in the county of Alachua. 

Belton, pp. 126, 127, 128. 

Belton says, that influenced by the threats of Dennis, 
he put the jurat to the affidavit; that he cannot state posi¬ 
tively who put Duke’s signature to the affidavit, but 
thinks it was in Dennis’ handwriting. 

Belton, p. 127. 

This testimony of Belton, of course, utterly destroys 
the force of his former statement that Dukes signed and 
swore to the affidavit, and eliminates from the record the 
only vestage ot evidence which has been offered to estab¬ 
lish that fact; and to clinch the matter, Dukes swears 
positively that he did not sign the affidavit. 

Dukes, p. 114. 

With this clear and satisfactory exculpation, Dukes 
stands wholly unimpeached, and is entitled to belief. 
He says that Belton tried to get him to sign the affida¬ 
vit, which he refused to do. He further testifies that 
Walls, who was the Republican candidate for the State 
senate, came to his house with Belton, and told him they 
had an affidavit which he wanted him to sign, and that 
upon his refusing to do so, Walls asked him if he would 
sign it for $25, and that he refused to do so. 

Dukes, p. 114. 


52 


Now as to Belton— 

Belton says in his last examination, that he went with 
Walls to Archer to get Dukes to sign an affidavit, and 
that they were there for that purpose on the 25th day of 
November, A. D. 1876. 

Belton, p. 126. 

This is corroborated by Dukes. 

Dukes, p. 114. 

Belton says that Walls requested Dukes to sign the af¬ 
fidavit. 

Belton, p. 126. 

This is corroborated by Dukes, who not only says that 
Walls did requesthim to sign the affidavit, but, upon his 
refusal, sought to tempt him with a bribe. 

Dukes, p. 114. 

Belton says that the pretended affidavit was in contra¬ 
diction of one previously signed by Dukes. 

Belton, p. 126. 

This too is corroborated by Dukes, substantially. 

Dukes, p. 114. 

Belton says that when he and Walls were at Archer, 
on the 25th of November, 1876, Dukes did not sign the 
affidavit. 

Belton, p. 126. 

This is not contradicted by any testimony except Bel¬ 
ton’s own previous statements made under the influence 
of threats and fear; but his last statement, that Dukes 
did not sign the affidavit, is corroborated by Dukes, who 
swears positively that he did not sign it. 

Dukes, p. 114. 

Belton says that the next time he saw Dukes, after the 
25th of November, at Archer, was on the 2d day of De¬ 
cember, at Tallahassee; and that the next time he saw 
the said pretended affidavit was on the 26th day of No- 


% 


53 


vember, at Capt. Dennis’ house in Gainsville, it being the 
next day after they had tried unsuccessfully to get Dukes 
to sign it at Archer. 

Belton, p. 127. 

Belton also says that on the 26th of November, there 
was no jurat to the affidavit, and that there was no sig- 
i ature to it; that he, (Belton) then put the jurat to it, 
and that the signature was then put to it; and that he 
thinks the signature was in the handwriting of Dennis. 

Belton, p. 127. 

This is corroborated* by the testimony of Dukes, who 
swears he did not sign it at all, and also corroborates the 
statement of Belton, that Dukes’ name was signed to the 
affidavit at a time when Dukes was not present, and es¬ 
tablishes the fact that Dukes’ name was forged to the 
affidavit. 

Belton, in his last examination, says that he put the 
jurat to the affidavit at the solicitation, or rather the 
command , of Mr. Dennis, and that he made a former and 
different statement in reference to the Dukes’ affidavit, 
under the influence of fear, and that it was extorted from 
him by threats made by L. G, Dennis, that he would ex¬ 
pose certain things in regard to the witness unless he 
would do as Dennis required him to do. 

Belton, p. 127. 

But it does not matter whether Belton put the jurat 
to the affidavit voluntarily or under compulsion, as in 
either case the jurat was a falsehood, and the signature 
to the affidavit was a forgery ; and I would now, and at 
this point, recall the attention of the Committee to the 
fact that Belton’s statements in his last examination are, 
in all material points, corroborated by other witnesses. 

Now as to Green R. Moore, who, it must be remem¬ 
bered, was a republican inspector at Archer precinct, 
No. 2. 


54 


Moore says he signed the returns in blank, and that 
they were never filled up in his presence. 

Moore, p. 83. 

This is nowhere contradicted in the evidence, but is 
strongly corroborated by the proven fact that the return 
delivered to the Clerk ot the Court was not signed in the 
handwriting of Moore, hut was a forgery ; and the further 
fact, that the number of votes cast as shown by the false 
and forged return, was greatly larger than the actual vote 
as shown by the testimony in the case, and proven by a 
number of witnesses, as already seen. 

Moore testifies that Vance, the clerk, and Black, one 
of the inspectors of the election at that p'recinct, and both 
republicans, took the ballot-box and the returns after the 
votes were counted, and carried them to Black’s house. 

Moore, p. 84. 

This is not only not contradicted, but is corroborated by 
Blitch, Vance, Geiger, Darby, and Tucker. 

Blitch, p. 99. 

Vance, p. 331. 

Geiger, p. 97. 

Darby, p. 101. 

Tucker, p. 111. 

Moore states that the ballots were strung, counted, and 
put back in the ballot-box, there being 277 ballots. 

Moore, p 84. 

This is corroborated by the testimony of both Webster 
and Belton, who swear that when the box was opened 
before the board of county canvassers, it contained 277 
ballots which had been strung, most of them having 
been detached from the string. 

Webster, p. 105 ; 

Belton, p. 131. 

Moore says that when the polls w T ere closed and the 
ballots counted, Black, one of the inspectors, announced 


55 


that for the office of governor, Stearns had received 180 
votes and Drew 136. 

Moore, pp. 83, 84. 

This is corroborated by the testimony of— 

Tucker, p. 110 ; 

Blitch, pp. 98, 99; 

Geiger, p. 96 ; 

Edge, p. 124. 

Moore says that Black and Vance arrived atGainsville 
with the ballot-box and returns about daylight on the 
day after election. 

Moore, p. 84. 

This is not only uncontradicted, but is corroborated by 
the testimony of Vance. 

Vance, p. 331. 

Moore says that when the ballot-box was taken away 
from the polls by Black, the hole in the top thereof was 
sealed, and not elsewTiere. 

Moore, p. 85. 

In this he is corroborated by the testimony of Tucker. 

Tucker, p. 111. 

Notwithstanding (as we have shown) Moore is corrobo¬ 
rated by other witnesses in all material points, it is at¬ 
tempted to break down his testimony, upon the pretence 
that he had made an affidavit to a different and contra¬ 
dictory state of facts. But I will show from the testi¬ 
mony that Moore was never sworn to the affidavit in 
question, and that the jurat attached to it was a wilful 
and deliberate falsehood. 

As W. K. Cessna and L. A. Barnes are the only wit¬ 
nesses produced by the contestee to show that Moore 
made the affidavit in question, I now propose to examine 
and comment on their testimony. 


56 


In the first place, Cessna swears that he went to Den¬ 
nis’ house, in Gainsville, about dark on the evening of 
the 20th of November, A. D. 1876 ; that Moore was there 
when he arrived; that it might have been about thirty min¬ 
utes after he arrived before Moore signed the affidavit, and 
that after he went in, Moore was in the parlor until the 
affidavit was signed. 

Cessna, pp. 348, 350, 351. 

L. A. Barnes states that he came to Dennis’ house on 
that evening, between seven and eight o’clock; that it 
was towards the last of November; that Moore came 
into the parlor about eight o’clock that evening; that 
Cessna came in directly after Moore, and that Moore 
signed the affidavit within an hour after he (Barnes) got 
there. 

Barnes, pp. 372, 373. 

If, as Cessna states, Moore signed the affidavit thirty 
minutes after dark at that time of the year, then Barnes’ 
statement that he signed it between nine and ten o’clock, 
cannot be true: and so if Baines’ statement is true, then 
Cessna’s statement must be untrue. 

It appears from Cessna’s testimony that on the even¬ 
ing in question there were assembled at the residence of 
L. G. Dennis, at Gainesville, a number of republican 
officials and partisan leaders of the Republican party, to 
wit: L. A. Barnes, who was then sheriff of the county 
and also tax collector and member of the seminary 
board; L. G. Dennis, who had been senator from 
Alachua and Levy Counties; was then member-elect to 
the lower house of the State Legislature, superintendent 
of public instruction for the county, county commis¬ 
sioner, and agent of the internal improvement board of 
the State; Mr. Paxton, who was sheriff of Hernando 
County; J. T. Walls, who was senator-elect from 
Alachua and Levy Counties; Mr. Bowes, who was a 


57 


notary public ; and John W. Raymond, who «i tax. 
assessor for Alachua County. 

Cessna, p. 348. 

Now, from a full and candid consideration of the tes¬ 
timony of both Cessna and Barnes, it will clearly appear 
that the above-named parties (including Cessna, who was 
then county court judge and a member-elect to the Leg¬ 
islature) were at Dennis’ house, at the time above men¬ 
tioned, for a purpose, and that the purpose was to induce 
Moore to make an affidavit contradicting one which he 
had previously made in regard to the frauds in the elec¬ 
tion and returns from Archer precinct ,No. 2. And I 
will here remark that the lame and disingenuous effort 
made by Cessna and Barnes to cover up and conceal 
their fraudulent design cannot but be apparent to the 
committee, from the attempts at concealment and equivo¬ 
cation which are stamped on almost every line of their 
testimony. 

Cessna attempts to make the impression that no one 
present at that time seemed to care whether Moore 
signed the affidavit or not; and Barnes, admitting that 
he wanted him to sign it, tries to make it seem that all 
others present were indifferent. 

Cessna, pp. 350, 351; 

Barnes, p. 373. 

Cessna and Barnes both testify that Cessna read the 
affidavit twice to Moore; that Barnes read it once, and 
that Moore read it for himself. 

Cessna, p. 348; 

Barnes, p. 371. 

This, wffth other testimony of Cessna himself, to which 
I will hereafter refer, will clearly establish the fact that 
he (Cessna) was anxious that Moore should sign the affi¬ 
davit and swear to it, notwithstanding his hypocritical 
pretense of indifference. 

8 


58 


Cessna states that the affidavit was drawn by Dennis 
or Bowes, but thinks it was the latter. 

Cessna, p. 349. 

Belton dissipates the doubt as to which of the two 
drew the affidavit, by testifying that it was in the hand¬ 
writing of Dennis. 

Belton, p. 128. 

Cessna says that Dennis first called his attention to the 
affidavit by saying here is an affidavit which he wanted 
Moore to take or sign. 

Cessna, p. 349. 

Cessna says that it was either Barnes or Dennis who 
asked him to swear Moore to the affidavit; and his fore¬ 
going statement that “ Dennis was the first one to call 
his attention to the affidavit,” warrants the conclusion 
that it was Dennis who asked him to swear Moore to it. 

Cessna, p. 349. 

Now, this testimony establishes the fact that not only 
Barnes, who admits it, but also Cessna and Dennis, were 
anxious that Moore should sign and swear to the affida¬ 
vit, and thus exposes the dishonest attempt on the part 
of Cessna, to make the impression that nobody exhibited 
any anxiety on the subject, and on the part of Barnes to 
make it appear that nobody but himself seemed to care 
whether the affidavit was made or not. 

Cessna states that Moore did not say “ that he would 
sign the affidavit, but would uot swear to it,” but that 
Moore told him “ he could sign it and swear to it.” 

Cessna, p. 350. 

And yet, on being closely pressed in the cross-exami¬ 
nation, he reluctantly states that Moore did say “ that 
he could not take that affidavit for the reason that he 
might be prosecuted.” 

Cessna, p. 350. 


59 


Cessna says, he cannot say that Dennis urged Moore to 
sign the affidavit, but that he heard Dennis and Moore 
talking about it; that Moore said in effect that he had 
done his party a wrong, and would like to repair it; and 
that Dennis replied, that there was but one way to do it, 
and that was to retract it by affidavit. 

Cessna, p. 350. 

Cessna says, that he does not remember, but is quite 
sure, that Barnes talked to Moore about the affidavit. 

Cessna, p. 350. 

Barnes says, that after he arrived at Dennis’ house, 
Dennis first called his attention to the affidavit for Moore 
to sign it. 

Barnes, p. 372. 

Barnes says, that he read the affidavit first to Moore 
shortly after he came in, without any body requesting 
him to do so, that in a few minutes Cessna read the affi¬ 
davit to Moore, and that shortly after that, Cessna read it 
a second time to Moore, and that between the times that 
Cessna read it to him Moore read it himself. 

Barnes, pp. 372, 373. 

Now, in the face of all these facts established by their 
own testimony, Cessna in his examination endeavors to 
create the impression, that no one who was present on 
that occasion was particularly desirous that Moore should 
sign the affidavit; and Barnes would have you believe 
that no one but himself desired Moore to sign it. 

If Cessna did not desire Moore to sign the affidavit, 
why did he read it to him twice in the face of Moore’s 
declaration made to Cessna himself, that he (Moore) 
could not make the affidavit for the reason that he might 
be prosecuted ? 

The truth is (and it will so appear from the evidence) 
that Moore, under a heavy pressure from Dennis, Cessna, 
Barnes, and it may be others, signed the affidavit but 
was never sworn to it. 


60 


Barnes says, that Raymond was there to sign the affi¬ 
davit as a witness, and that he (Barnes) also signed it as 
a witness. 

Barnes, p. 372. 

Why were they so particular to have the witnesses to 
an affidavit, when the jurat signed by the officers admin¬ 
istering the oath is all that is necessary, and all that the 
law requires ? 

Barnes says, that when he heard Moore was in the 
office he went out and invited him into the parlor—that 
he wanted him to go into the parlor to sign the affidavit, 
and yet, in the next breath, he says he cannot remember 
whether his motive in inviting Moore into the parlor 
was to get him to sign the affidavit. 

Barnes, p. 374. 

I have only to remark, that such shameless and palpa¬ 
ble prevarication as this, requires no comment. 

Thus it is seen that there is a labored, though lame at¬ 
tempt on the part of both Cessna and Barnes, to cover up 
and conceal the fact that Moore signed the affidavit under 
a heavy pressure, and that he signed it reluctantly. But 
Cessna’s own testimony establishes the fact beyond dis¬ 
pute, that Moore never did swear to the affidavit. 

Cessna states that he read the affidavit to Moore, who 
signed it; that he, (Cessna) added the jurat “ sworn to 
and subscribed before me; ” that after reading it to him, 
he said to Moore, “ do you swear to the statements made 
in this affidavit ? 99 and Moore answered I do, or words 
to that effect. Cessna says Moore did not put his hand 
on a Bible; that he did not tell Moore to hold up his 
right-hand. Cessna says he read the jurat as he wrote it, 
and that Moore was looking at him, with his face about 
eighteen inches from the paper; that Moore was sitting 
down at the time, and think he rose up in his chair, but 


61 


did not get on his feet, when he, (Cessna) said “ do you 
swear ? ” 

Cessna, p. 351. 

Cessna swears that he made and signed the jurat to the 
pretended affidavit of Moore, on the 20th day of Novem¬ 
ber; and Belton swears that the jurat was made by Cess¬ 
na on the 26th day of November, and it is fairly to be in¬ 
ferred from the testimony, that Moore was prevailed on 
to sign the affidavit, on the 20th of November, but re¬ 
fused to be sworn to it; and that Cessna, on the 26th 
day of the same month attached a jurat, which he knew 
to be false. 

Cessna, p. 348 ; 

Belton, p. 128. 

A careful examination of the testimony of Cessna and 
Barnes must satisfy every candid mind that Moore did 
not want to make the affidavit; that under a persistent 
pressure he consented to sign it, but refused to swear to 
it; and that Cessna, the judge of a court of record, sought 
to overcome the difficulty, by pretending to administer 
an oath when he did not, and signing his name officially 
to a jurat which he knew to be false. 

It is to be observed that Cessna and Barnes are the only 
witnesses who pretend to intimate that Moore was sworn 
to the affidavit, and that Cessna’s own testimony shows/ 
that, in fact, he was not sworn to it. 

I need not make any argument to show that Moore 
could not be held to be guilty of perjury upon the testi¬ 
mony of Cessna and Barnes. 

Cessna’s motive in lending himself to the consumma¬ 
tion of this vile and dish onest transaction, is betrayed in 
his own testimony when he says of the parties at the house 
of Dennis on the evening in question, that the matter 
was discussed among them, and that the opinion there 
expressed was, that the Presidential election might 


62 


depend on the' 7 State of Florida—that it might depend 
on the election in the county of Alachua, and that 
it might depend on the vote at Archer precinct; that he, 
Cessner, was thinking of Archer precinct No. 1, but ad¬ 
mits that there was a great deal of anxiety expressed that 
the count of the vote at Archer precinct No. 2, as re¬ 
turned by the County Board, should be sustained, and 
says it was his desire it should be sustained, because he 
believed, as it stood, we (the Republicans) lost one hun¬ 
dred votes. 

This, I repeat, betrays the motive of this had man in 
signing a false jurat. After discovering that he had un¬ 
wittingly laid bare his motive, he makes the'disgusting 
and pitiful attempt to break its force by saying he “ was 
thinking of Archer precinct No. 1 , (about which there was 
no dispute) and then, in confusion, which all dishonest 
men experience when suddenty made conscious that they 
have betrayed their own guilt, he says that he was anxious 
that the vote from Archer precinct No. 2, asjreturned by 
the County Board, should be sustained, and sa}^s that 
the reason for his anxiety was “^because he believed, as 
it stood, his party lost one hundredwotes ; thus showing 
that a man suddenly surprised by his detection in dis¬ 
honest courses—in his blind efforts to extricate himself, 
but sinks deeper and deeper in the mire of falsehood and 
crime. 

At this point it is proper to remark that the import¬ 
ance of carrying the election for the Republicans at Arch¬ 
er Precinct No. 2 by a large majority explains and gives 
emphasis to that part of Belton’s testimony in which he 
says that Dennis told him the Administration would not 
count itself out, and if Belton refused to do as Dennis de¬ 
sired in regard to this precinct, he would find himself in 
a bad situation. 

Belton, p. 127. 


63 


In this connection I deem it very important to fix the 
attention of the committee on the fact that in all the ex¬ 
aminations which Moore has undergone before Congres¬ 
sional committees, and in this case, as well as in his first 
affidavit, all his sworn testimony is consistent with what he 
has testified here, and is nowhere contradicted, except in 
the affidavit pretended to have been taken before Cessna, 
and which Cessna himself shows was not sworn to by 
Moore : and, inasmuch as Moore’s testimony as to all 
material facts has been corroborated by other and unim¬ 
peached witnesses, it must be taken as true. 

Belton says that when he went to Dennis’ on themorn- 
of the 26th of November, A. D. 1876, there was no jurat 
to the so-called affidavit of Green B. Moore, but “ a jurat 
was put to it while he was there by W. K. Cessna, the 
then county judgeand he also says that he has made 
no different affidavit in regard to the affidavit of Green 
B. Moore. He says the affidavit was signed by Moore, 
but there was no jurat or official signature to it. 

Belton, p. 128. 

When the testimony of Cessna and Barnes comes to 
be examined, and its internal evidences of evasion, equiv¬ 
ocation, and contradiction are carefully and candidly con¬ 
sidered, I am much mistaken if the committee and the 
House do not give more credence to the repentant Belton 
than to the unrepentant Cessna and Barnes. 

I have now presented all the questions raised by the 
notice of contest, and upon which the contestant relies. 

I have shown that according to the county returns, the 
contestant received a majority of votes in the district, 
provided the returns from precinct No. 8, number 11 
Pond, shall be included in the returns from Clay County ; 
and have shown most conclusively that the vote at that 
precinct should be counted. 

I have shown that the county returns from Baker 


64 


County, including' the precincts of Joiiusville and Darby- 
ville in that county should be counted. 

I have shown that the return from Jasper precinct No. 
2, in Hamilton County, should be counted. 

I have shown that the county returns from Alachua 
County should be rejected, and that the evidence in the 
case does not show what the true vote in the county was. 

I have shown that the returns from Archer precinct 
No. 2, should be rejected on account of fraud on the part 
of the election officers at that precinct, and have shown 
that it is impossible that the contestee could have re¬ 
ceived 280 votes at said precinct, which he claims to have 
proved. 

The return from this precinct being rejected, the most 
clearly proven fact in regard to the vote at that precinct 
for Congress, is, as I have shown, that the contestee re¬ 
ceived 180 votes, and the contestant received 141—ma¬ 
jority for contestee 39 votes. 

There is, however, so much uncertainty about the 
actual result at this precinct, that it is impossible to de¬ 
duce from the evidence, what the true vote was, and in 
my judgment the safest course would be to reject the en¬ 
tire vote of this precinct, not counting any thing for 
either. 

If the vote is counted according to the best, evidence 
in the case, it will give the contestee a majority of only 
39 votes at this precinct, or 219 less than allowed him by 
the State board. 

If nothing be counted from this precinct for either, 
then 399 will have to be deducted from the contestee’s 
vote in the district as allowed by the State board of can¬ 
vassers, and 141 will have to be deducted from the vote 
of the contestant, which would increase the majority of 
the latter 258 votes. 

Having thus made out the case as presented in and by 
the notice of contest, I shall now address myself to the 


65 


questions raised by the answer of the contestee, and will 
first take up such questions as relate to Alachua County, 
so as to preserve the order of argument, as indicated in 
the beginning. 


Contestee’s Answer. 

He asks that the return from Waldo precinct, in Ala¬ 
chua County be rejected : 

1st. Because he alleges that the inspectors grossly dis¬ 
regarded and violated the election laws, so as to render 
their return unreliable. 

2d. Because they allowed passengers on the railway 
to vote, without regard to evidence, age, or registration, 
and that a large number of such passengers did so vote 
for member of Congress, with the knowledge, consent, 
and connivance of the inspectors, such persons not being 
citizens of the State of Florida. 

3d. That a number were coerced to vote for the con¬ 
testant and against the contestee, against their will. 

Answer, p. 20. 

The testimony of Noyes and Earle, witnesses produced 
by the contestee, shows that there was no disregard of 
the election laws by the inspectors at this precinct, which 
indicated any design to commit a fraud; and their testi¬ 
mony further shows that the true vote can be clearly 
and certainly ascertained. 

Noyes, pp. 362-3-4 ; 

Earle, pp. 364-5-6. 

Noyes states that about twenty-two persons voted at 
that precinct who were not citizens of the county and 
State, and that he (the witness) an d the other supervisors 
examined their tickets to see that they did not vote for 
any others than Presidential electors. 

Noyes, p. 363. 

Earle testifies that twenty of the twenty-two above- 

9 


66 


mentioned, voted for Presidential electors alone, and 
that Wm. Ford, one of the other two, who at that time 
was living in Clay County, voted for the contestant. 

Earle, p. 365. 

It is therefore proper to deduct the vote of Ford from 
the contestant’s vote at that precinct. 

Earle says that about forty voted at that precinct whose 
names were not on the registration list; but he says they 
knew them to be citizens, and that they took the oath, 
and their votes were sworn in. This witness also says 
that he was acquainted with most of the forty mentioned, 
and that they were about equally divided between the 
democratic and republican parties, and that without 
being challenged by any one about the polls, when their 
names were not found on the registration list, the in¬ 
spectors required them to take the oath before they were 
allowed to vote. 

Earle, pp. 365-6. 

The testimony of Earle in regard to the twenty-two 
who voted for Presidential electors, is substantially cor¬ 
roborated by Bruce, another witness examined by the con* 
testee. 

Bruce, pp. 343-4. 

The testimony produced by the contestee himself, 
shows that there was no fraud attempted or accomplished 
at this poll: that the non-residents or immigrants only 
voted for Presidential electors; that the forty whose 
names were not found on the registration list, were citi¬ 
zens of the county, took the required oath, and were al¬ 
lowed to vote ; that the forty were about equally divided 
between the two parties, but it does not appear how or 
for whom they voted. 

After deducting Wm. Ford’s vote from the majority of 
the contestant, there is no reason in law or in fact why 
the return from this precinct should not be sustained. 


67 


As to the allegation in the answer, that a number were 
coerced to vote for contestant, and against the contestee 
against their will, no evidence whatever is offered to sus¬ 
tain it. 


Waccassasa Precinct, Alachua County. 

The contestee, in his answer, asks that the returns 
from this precinct be rejected. 

1. Because the inspectors opened the polls at a place 
distant from that established, in order to promote fraud¬ 
ulent voting. 

[Note. —No evidence is offered to sustain this allega¬ 
tion.] 

2. Because the return was false, and did not contain 
the true vote cast. 

[Note. —There is not a particle of proof to sustain this 
allegation.] 

3. Because the inspectors and clerk were not sworn. 

[Note. —No attempt is made to prove this allegation ; 

and, even if it had been proved, it would not vitiate the 
return, uuless it should also be shown that the election 
was unfair, or the return fraudulent.] 

4. Because no poll-list was returned from that pre¬ 
cinct. 

[Note. —This allegation is not proven, nor attempted 
to be proven.] 

5. Because a large number of non-residents voted. 

[Note. —There is no attempt to prove this allegation in 

the answer.] 

Answer, p. 19. 

The contestee, however, without having alleged it in 
his answer, that persons were intimidated at this precinct, 
and that some voted who were under age; and for this 
purpose he introduces but one witness, Robert B. Was¬ 
son, who was a republican inspector at said precinct. 


68 


Wasson testifies that he was a republican inspector at 
said precinct, and that he voted for the contestee for 
Congress; and that he heard remarks made by parties, 
but cannot say by whom, that “ no d—d republican 
should put in a vote at that box.” 

Wasson, p. 341. 

This witness rebuts his own attempt to prove that 
there was intimidation at that precinct, by swearing that 
there were hut three republican votes cast there, and that 
they voted with open tickets without molestation or hin- 
derance, and he does not attempt to testify that any repub¬ 
lican was detered from voting by reason of intimidation 
or threats. 

Wasson, p. 342. 

Notwithstanding there is no allegation in the answer 
to support it, the contestee attempts to show that eleven 
persons voted at said precinct who were under age. But 
Wasson the Republican Inspector, and only witness who 
testifies in regard to this precinct, says he doubted 
whether they were of age as he did not know them him¬ 
self, but that they made oath before they voted, that they 
were twenty-one years of age. 

Wasson, p. 368. 

A careful examination of the testimony of this witness 
cannot fail to satisfy any fair mind that he attempted, 
in utter disregard of the truth, to create the impression 
that persons had been prevented from voting by intimi¬ 
dation, and that minors had also voted, when, in fact, his 
own evidence shows that neither was true. 

It was necessary for the contestee to allege and prove 
that a sufficient number were prevented from voting to 
have varied the result of the election, neither of which 
has been done. 

McCrary, sec. 430. 

Besides, the testimony of the persons intimidated 


69 


should be produced; the opinions and impressions of 
others is not sufficient. 

McCrary, sec. 431. 

Cow Creek Precinct, Alachua County. 

The contestee asks that the returns from this precinct 
be rejected. 

1. Because it is not a true return. 

2. Because many illegal votes were received and 
counted for the contestant by non-residents minors, and 
persons who had voted before at other precincts and in 
different counties. 

Answer, p. 20. 

It will be seen, by an examination of the testimony in 
the printed record, that no evidence has been offered to 
support these allegations. 

The contestee also asks that seventy votes cast for the 
contestant at the several precincts of the County of Al¬ 
achua, be excluded on the following grounds: 

1st. Because they were non-residents ; 

2d. Because they were under age ; 

3d. Because they were not registered ; 

4th. Because they were foreign born. 

Answer, p. 20. 

It is contended that this allegation is not sufficiently 
explicit—the allegation that seventy illegal votes were 
polled in the county, or at the several precincts in the? 
county, is too general. The answer should have alleged 
at what precinct or precincts such illegal votes were cast, 
and the number so cast at each precinct. 

Mr. McCrary, in his valuable work on Contested Elec¬ 
tions , says: “ Cases have arisen, and will again arise, 

giving rise to controversy, as to whether a given allega¬ 
tion comes up to the requirements- of the act of Con- 


70 


gress of February 9, 1851, and it must be for the House, 
in each case, to decide upon the case before it* It may 
be observed, however, that this statute should receive a 
reasonable construction—one that will carry out, and 
not defeat its spirit and purpose. And perhaps the rule 
of construction which will prove safest as a guide, in 
each case, is this : a notice which is sufficiently specific to put 
the sitting member upon a proper defence , and prevent any sur¬ 
prise being practiced upon him , is good ; but one which fails 
to do this , is bad. 

McCrary, sec. 343, citing; 

Wright v s. Fuller , 1 Bartlett, 152. 

The same rule, will of course, apply to all the allega¬ 
tions in answer setting up other grounds upon which the 
returned member rests the validity of his elections out¬ 
side of a due response to the allegations contained in 
the notice of contest. 

It is confidently contended that the allegation in the 
answer, does not come up to the requirement of the rule, 
because it has not only not prevented surprise to the con¬ 
testant, but when considered in connection with the time 
when the contestee took his testimony to support the al¬ 
legation, it leaves no doubt of actual surprise, and re¬ 
quires the exercise of a very charitable view of the mat¬ 
ter to put aside the suspicion that surprise was intended. 
In order to show this, I need only call the attention of 
the committee to the fact that the contestee had from 
the time the notice of contest was served on him to pro¬ 
cure the certified copies of the registration-lists, and poll- 
lists of the nine counties in question, and could have 
taken the testimony of Horatia Jenkins, Edwin Higgins, 
and W. W. Dunhurst, in regard to the comparison of 
said lists at an early day in the time alloted to him to 
take testimony ; but instead of doing that, he delayed 
doing so until the. last day allowed him by the act of 


71 


Congress to take testimony, and when the contestant 
only had ten days under the act in which to rebut the 
testimony of the contestee in regard to non-registered 
voters in this and eight other counties in the district, in 
which limited time it was simply impossible for the con¬ 
testant to find, summons, and examine the persons whose 
votes are questioned on the ground of non-registration. 

If the answer had alleged the number that w T ere non¬ 
residents at each precinct, the number that were not reg¬ 
istered who voted at each precinct, the number that were 
under age, and the number that were foreign-born at 
each precinct, it would have complied with the require¬ 
ments of the rule laid down in McCrary on Elections; 
or, if he had made his proof at an earlier period in the 
time allowed him to take testimony, while it would not 
have satisfied the rule, it would have given the contest¬ 
ant time to rebut. 

But the allegation was not so made, and the contestee 
did not take his testimony on this point until the last 
day allowed him by the act, and when it was impossible 
for the contestant even to ascertain the whereabouts of 
the witnesses, much less to give the notice required by 
the act, and to summons and examine them. The act 
requires that subpoenas shall be served on witnesses five 
days before their attendance can be required. 

U. S. Revised Statutes, sec. 107-114; 

Appendix to McCrary, pp. 417, 418. 

It seems to be settled, by the decisions of the House 
of Representatives, that a notice is good under the law 
if it specify the number of illegal votes polled, for whom 
polled, when and where polled, without specifying the 
names of the illegal voters. 

McCrary, sec. 344, citing Wricjht vs. Fuller , 1 
Bartlett, p. 152; 

Valandingham vs. Campbell, 1 Bartlett, p. 223; 

Ottero vs. Galegas, 1 Bartlett, p. 177. 


72 


The precinct where a vote is received and counted is 
the place where it is polled in the meaning of the fore¬ 
going authority, and the allegation in the answer does 
not specify the place where the alleged illegal votes were 
polled, nor how many such votes were polled at speci- 
lied precincts, and is, therefore, void under the rule. 


I now desire to call the attention of the committee to 
the fact that it is not proven, nor even attempted to be 
proven, how or for whom the alleged illegal votes were 
cast, either in this (Alachua) county, or any of the other 
eight counties, in regard to which the same question is 
made. 

It often appears, in the course of the trial of a con¬ 
tested election case, that votes have been cast by persons 
not qualified to vote; and in such cases it becomes very 
important to ascertain for whom such votes were cast. 

McCrary, sc. 270. 

But the contestant is not driven to the necessity of re. 
lying on the manifest insufficiency of the contestee’s 
answer touching the alleged non-registered voters in the 
nine counties mentioned in his said answer; for, if the 
votes of these persons were received, the well-established 
legal presumption is that they were duly qualified to 
vote. 

McCrary, sec. 62. 

It is, therefore, to be presumed that these voters had 
been registered, and that they took the oath that their 
names had been improperly dropped from the registra¬ 
tion list before they were allowed to vote; and simply 
to show that their names were not found on the reels- 

o 

tration list is not sufficient to overcome the presumption, 
for the legal presumption is that, although their names 
were not found on the registration list, they were quali¬ 
fied voters; and the fact that their names were not 




73 

found on said list does not overcome the presumption in 
favor of their qualification as voters. 

Nor does the absence of their names form any supposed 
or pretended list of persons whose names have been 
dropped from the registration list overcome the presump¬ 
tion, because there is no law in Florida authorizing or 
requiring such a list to be kept; and, therefore, any cer¬ 
tification by the Clerk of the Court to any such unauthor¬ 
ized list is inadmissible as evidence. It clearly is not the 
best evidence to prove the allegation that these votes 
were illegal. It is incumbent on the party insisting on 
their disqualification to vote on the ground that their 
names were not found on said list, or on the registration 
list, to show that they voted without taking the oath that 
they had been registered, and that their names had been 
improperly dropped. 

The settled doctrine is, that the acts of an officer of 
election within the scope of his authority are presumed 
to be correct, and this doctrine, according to McCrary, 
is strongly stated and ably argued in Littall vs. Robins , 1 
Bartlett, 138, in which the rule is placed on two grounds— 
viz : First. The presumption is always against the com¬ 
mission of an illegal and fraudulent act; and, Second , 
that the presumption is always in favor of the official acts 
of a sworn officer. 

McCrary, secs. 87 and 440. 

It would be an illegal and fraudulent act upon the part 
of a person who votes, knowing that he was not legally 
qualified to do so ; and as it is the sworn duty of the In¬ 
spector of an election to swear all persons whose names 
are not found on the registration list, that they have been 
registered and that their names have been improperly 
dropped ; the law presum.es that they acted in obedience 
to their oath, by administering the oath, and this pre¬ 
sumption is not overcome by any proof in the record ; 
and it cannot be overcome by showing that their names 
10 


74 




were not found on the registration list, or on the unau¬ 
thorized list of names stricken from the registration list. 

Act (Fla.) Aug. 6, 1868, sec. 9, p. 4. 

If it were true that these persons voted when their 
names were not found on the registration list, without 
taking the oath required by the statute, it was, according 
to the English doctrine, susceptible of proof by the illegal 
voters themselves; or, if the contrary doctrine shall be 
adopted, it was susceptible of proof by the election offi¬ 
cers or by any of the voters or by standers about the 
polls where such votes were cast; and this being the best 
testimony or evidence, the lists offered in evidence for 
this purpose are inadmissible. 

The contestee had the means of obtaining the names 
of the alleged illegal voters and the officers of the elec¬ 
tion at each precinct in the nine counties mentioned in 
his answer, and should have produced them as wit¬ 
nesses. 

[Note.—I respectfully request the committee to apply 
the argument I have submitted on this point in regard 
to Alachua county to the other eight counties in which 
the contestee raises the same question in his answer, and 
also ask the committee to bear in mind that it is not 
proven, or even attempted to be proven how or for whom 
these pretended illegal voters voted in any of the nine 
counties named in the answer.] 

In regard to the election in Alachua county, the con¬ 
testee has failed to prove that any persons voted who 
were under age, and has only proved that one non-resi¬ 
dent voted ; and this leaves only the question as to the 
foreign vote in this county to be disposed of. 

The contestee asks that the votes of seven (7) persons 
in Alachua county be rejected, on the ground that at the 
time they voted they did not present a certified copy of 
their naturalization papers or of their declaration of in¬ 
tention to become naturalized. 

Answer, p. 20. 


75 


[Note.— As this objection is made in the answer to 
votes of foreign-born citizens in a number of the coun¬ 
ties in the district, I respectfully ask the committee to 
receive the argument now to be submitted as applicable 
to all cases of this character.] 

We will now resort to the evidence, from which it will 
appear that the contestee has only shown, and only at¬ 
tempted to prove that seven persons in this count}^ voted 
without producing a certified copy of their naturalization 
papers, or of their declaration of intention to become 
naturalized. 

1. Peter Dougherty swears that he was naturalized 
about 1860. 

Dougherty, p. 344. 

2. Moses Endell swears that he was naturalized at 
Richmond, Va., in 1853 or 1854; that he was not chal¬ 
lenged when he voted. 

Endell, pp. 358-’9. 

3. Hyman Pinkeson declared his intention in 1876, 
before the election and before voting; was not asked for 
his papers ; was about seven years old when he came to 
the United States. 

Pinkeson, p. 359. 

4. William Flynn had declared his intention, and had 
also been naturalized about 1850 or 1851; had served in 
the United States Army, and had been honorably dis¬ 
charged, and his vote was not challenged. 

Flynn, p. 359. 

5. William E. Schoflin was naturalized in 1862, in 
New York; had lived in Florida twelve years, and in 
Alachua county three years ; was a Union soldier during 
the late war, and honorably discharged. His vote was 
not challenged, and contestee does not prove that he was 
not naturalized. 

Schoflin, p. 362. 


76 


6. John A. Cellen was naturalized many years ago at 
Newnansville, Fla ; luis lived in Florida ever since 1834. 

Cellen, p. 364. * 

7. Edward Weil had not taken out naturalization pa¬ 
pers, but had been in tbe United States Army, and had 
been honorably discharged. 

Weil, p. 358. 

It appears from the evidence that all of these parties 
were foreigners by birth, but that all of them except 
Weil had either been naturalized or declared their inten¬ 
tion to become so; that their right to vote was not chal¬ 
lenged, and they were permitted to vote without present¬ 
ing their papers, and without their papers being de¬ 
manded. 


I will now proceed to the legal argument upon the 
question presented. 

I contend that their votes should not be rejected, for 
the reason that under the constitution and laws of Florida 
they were all qualified voters, unles the votes of Edward 
Weil and W. E. Schaeftin shall be excepted. 

All the qualifications of voters in Florida are defined 
in Section 1, of Article XIV, of the State constitution, 
as follows : 

“ Sec. 1. Every male person of the age of twenty-one 
years and upwards, of whatever race, color, nationality 
or previous condition, who shall at the time of offering 
to vote, be a citizen of the United States, or who shall 
have declared his intention to become such in conformity 
to the laws of the United States, and who shall have re¬ 
sided and had his habitation, domicile, home and place 
of permanent abode in Florida for one year, and in the 
county for six months next preceeding the election, at 
which he shall offer to vote, shall in such county be 



77 

deemed a qualified voter at all elections under this con¬ 
stitution.” 

See Acts of 1868, containing the State constitu¬ 
tion, p. 211. 

Now, the 8d section of the same article of the consti¬ 
tution, and the one on which the eontestee relies, does not 
undertake to create any additional qualification for a 
voter, but only prescribes a regulation —a distinction be¬ 
tween the two sections of the constitution to which E in¬ 
vite the careful attention of the committee, and to which 
I shall again have occasion to refer in the course of the 
argument. 

It provides as follows : 

“ Sec. 3. At any election at which a citizen or subject 
of any foreign country shall offer to vote under the pro¬ 
visions of this constitution, he shall present to the per¬ 
sons lawfully authorized to conduct and supervise such 
election, a duly sealed and certified copy of his declara¬ 
tion of his intention, otherwise he shall not be allowed 
to vote. And any naturalized citizen offering to vote, 
shall produce before said persons lawfully authorized to 
conduct and supervise the election, the certificate of nat¬ 
uralization, or a duly sealed and certified copy thereof, 
otherwise he shall not be permitted to vote.” 

Acts of 1868—Constitution, sec 3, p. 211-212. 

It is manifest that Section 1 of Art. XIV, defines and 
determines all the qualifications of voters in Florida, and 
it is equally clear that the 3d section of said article does 
not create, or even attempt to create, any additional qual¬ 
ification. The qualification prescribed by Section 1 in 
regard to foreign-born persons is, that they shall be at 
the time of offering to vote, citizens of the United States, 
or shall have declared their intention to become such; 
while the 3d section, with a reasonable interpretation 
given to it, only undertakes to prescribe the mode of proof , 


78 


in case the right of such persons to vote shall be chal¬ 
lenged. 

It is a fact not to he disregarded, that nearly one-half 
of the delegates to the Constitutional Convention were 
members of the Legislature which was elected at the time 
of the adoption of the constitution by the people, and 
which convened very soon thereafter, and passed the act 
of August 6, 1868, which treats the 3d Section of Article 
XIV of the Constitution as being merely directory ; the 
16th section of said act providing that “ If any person 
offering to vote shall be challenged as not qualified, by 
any inspector, or by any other elector, one of the board 
shall declare to the person challenged, the qualifications 
of an elector. If such person shall claim to be qualified, 
and the challenge be not withdrawn, one of the inspect¬ 
ors shall administer to him the following oath : “ You do 
solemnly swear that you are twenty-one years of age; 
that you are a citizen of the United States, (or that you 
have declared your intention to become a citizen of the 
United States according to the acts of Congress on the 
subject of naturalization ;) that you have resided in the 
State one year, and in the county six months next pre¬ 
ceding the election ; that you have not voted at this elec¬ 
tion, and that you are not disqualified to vote by the 
judgment of any court; and if the person challenged 
shall take such oath he shall be allowed to vote.” 

Pamphlet acts, 1868, p. 5 ; sec. 16. 

Section 19 of the same act provides that, “ If the per¬ 
son shall swear that he is a citizen of the United States, 
the letter “ C ” shall be entered opposite his name in the 
list kept by the clerk. If he swears that he has declared 
his intention to become a citizen, the letter “ D ” shall 
be entered opposite his name upon said list.” 

Pamphlet Acts, 1868, sec. 19, p. 6. 

The proof shows that none of the persons mentioned 


79 


were challenged; that their naturalization papers were 
not demanded ; that they were allowed to vote without 
question, and that they were in fact at the time they 
voted, either citizens of the United States, or had de¬ 
clared their intention to become such, thus showing that 
they actually had the qualification of either citizenship 
or of declared intention to acquire citizenship, which is 
required by section 1, of Article XIV, of the constitution. 
And the question presented to the committee is, whether 
in view of the constitution and laws of Florida, as above 
cited, and in view of the proof in this case, showing that 
they, in fact, had all the qualifications of voters, their 
votes are to be rejected and they deprived of.the highest 
privilege of citizenship acquired by the abandonment of 
their native land, and by the solemn renunciation of 
their native allegiance. 

This great injustice ought, if possible, to be avoided, 
and can be avoided by a fair and reasonable interpreta¬ 
tion of sections 1 and 3, of the XIV Article of the consti" 
tution, and that interpretation is to limit the require¬ 
ments of section 3, touching th-e production of naturali¬ 
zation papers to cases where the right to vote is chal¬ 
lenged. 

As has been seen, this is the construction given to # it 
by the Legislature of Florida, in 1868, many of whose 
members aided in the formation of the constitution, and 
this construction has been acquiesced in by every legisla¬ 
ture which has convened since that lime. 

The real question is, were the persons voting qualified 
voters at the time they voted ? 

In this case, were they in fact naturalized, or had they 
declared their intention to become so ? 

If they voted without challenge, the law presumes 
that the sworn officers of the election performed their 
duties properly and honestly—in other words, that th9 
persons so voting were legally entitled to vote, and the 


80 


burden of proof to show that they were not devolves on 
the party denying their right to vote. 

In this case, so far from the evidence showing that the 
persons in question were not entitled to vote, it shows 
that they were either naturalized or had declared their 
intention to become so. In other words, the evidence 
shows that they were entitled to vote, and the contestee 
has failed to establish the contrary fact. 

It is quite settled, says Mr. McCrary, that where one who 
is alien born has voted at an election, the law presumes 
that he has been naturalized, until the contrary appears. 

McCrary, sec. 294; citing New Jersey case, 2 
Cong. Cases. 

It is therefore seen, that a person who has voted, is 
presumed, until the contrary is shown, to have been 
qualified. The contrary may be presumptively shown 
by proof that the voter has failed to produce the proof 
required by law before voting; in which case it is in¬ 
cumbent on the person claiming his vote, to show affir¬ 
matively that he was a qualified voter. This has been 
done by the contestant in all the cases of this class, ex¬ 
cept in one or two instances. 

McCrary, sec. 62. 

•Evidence which might have been sufficient to put the 
voter to his explanation if challenged at the polls, is not 
deemed sufficient to prove a vote illegal after it has been 
admitted. 

McCrary, sec. 371. 

Section 1 of article XIV of the constitution of Florida, 
fixes and determines the qualifications of voters. Section 
3 ol the same article only prescribes a regulation , and the 
principle is well settled that the right to vote must not be 
impaired by the regulation. It must be regulation purely 
and not destruction. 

McCrary, sec. 8. 


81 


So far as foreign-born persons are concerned, who have 
been naturalized and have voted, the question is conclu¬ 
sively settled by section 1 of the Fourteenth Amend¬ 
ment to the Federal Constitution, which declares “ that 
all persons born or naturalized in the United States and 
subject to the jurisdiction thereof, arc citizens of the 
United States and of the State wherein they reside;” 
and “ no State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States.” 


Putnam County. 

It is alleged in the 23d specification in the contestee’s 
answer, that twenty votes received by the contestant in 
the county of Putnam, should be excluded on the ground 
that they were cast by non-residents, persons not regis¬ 
tered, and by minors; and that ten votes should be 
deducted from the contestant's vote in said county on the 
ground that they were cast by persons who were alien- 
born, and who voted without producing evidence oftheir 
right to vote. 

Answer, p. 21. 

Objecting to the legal sufficiency of this allegation upon 
the argument made and authorities cited in reference to a 
similar allegation made in the answer in regard to Ala¬ 
chua county, to the effect that it was necessary and es- 
* sential to have alleged the precincts at which such votes 
were polled, and the number cast at each, I now proceed 
to examine the testimony, first remarking that all that is 
attempted to be proved under the above allegation, isthat 
one minor and two non-residents and eleven persons who 
were foreign-born voted in said county, as alleged in the 
answer. 

George W. Lyle, a witness for contestee, testifies that 
a person named Henry Cannon told him in May, 1876, 

11 


82 


when witness was assessing taxes in Putnam county, that 
he would be 21 years old in March, 1877 ; that his mother 
had told him so, and witness did not assess him for a poll 
tax. When asked whether Henry Cannon voted at the 
election, he says that the name of Henry A, Cannon was 
on the poll-list at Palatka; that he only knew Henry 
Cannon, and did not know any one by the name of Henry 
A. Cannon. 

Lyle, pp. 435, 436. 

It is only necessary to say that it is not shown that 
Henry Cannon voted, nor how he voted, and it has not 
been proved that Henry A. Cannon, whose name was on 
the poll-list at Palatka, was undertwenty-oneyearsofage. 
This testimony is wholly insufficient. To say that Henry 
Cannon, about whom the witness, Lyle, testifies is the 
Henry A. Cannon whose name was on the poll-list, is to 
assume what has not been proven. 

It is contended that John Smith voted for the con¬ 
testant at Palatka precinct, and that he had not resided 
and had his home in Putnam county for six months pro¬ 
ceeding the election. 

The Constitution of Florida provides that the person 
offering to vote “ shall have resided and had his habita¬ 
tion, domicil, home, and place of permanent abode in the 
State for one year,” and in the county six months. 

Acts of 1868; Constitution, sec. 1, art. 14, p. 211. 

It is, therefore, submitted that the answer should have 
alleged, not only that John Smith had not resided and 
had his home in Putnam County for six months preced¬ 
ing the election, but that said county had not been his 
domicil and place of permanent abode for that length of 
time. 

Smith himself testifies that he came to Palatka, Put¬ 
nam County, on the 5th day of May, 1876 (which was 
six months and two days before the election); that he 


83 


came there with the intention of remaining and making 
it his home; and, in pursuance of that intention, he 
made arrangements for business as a baker, and com¬ 
menced business when he first came to Palatka, and after 
having been there nearly two months, he went to Green 
Cove and removed his family. 

Smith, pp. 418, 419, 420. 

An examination of the testimony of Henry R. Teas- 
dale and Manuel H. Rogero will show that they do not 
disprove the statements of Smith. 

Teasdale, pp. 420, 421; 

Rogero, pp. 421, 422. 

The question here presented is whether, in view of 
these facts, Smith acquired a political domicil in Putnam 
County from the 5th day of May, 1876, or whether such 
domicil was only acquired when he removed his family 
to Palatka. 

The testimony shows that he went to Palatka on the 
5th day of May, with the intention to remain there and 
to make it his permanent abode; and if he had taken 
his family with him at that time, his right to vote could 
not be disputed. 

In view of the proven facts, did his going to Palatka 
on the 5th day of May change his political domicil ? 

Mr. McCrary, agreeing with all the legal writers on 
the subject, says that the question of residence or domi¬ 
cil is a question largely of intention , and that the fact of 
voting is a very strong evidence of the voter’s intention 
to claim a domicil at the place of voting. 

McCrary, sec. 34. 

Besides, Smith swears that he went to Palatka at that 
time with the intention of remaining there, and, accord¬ 
ingly, he registered in Putnam County. 

Residence , in the meaning of the Constitution of Flor- 


84 


ida, as applied to the qualification of an elector, means a 
place of permanent abode. 

In view of the proven facts, Clay County (in which is 
Green Cove) could not be considered the place of Ins 
permanent abode, because he had left there with the in¬ 
tention not to return to it as his home, and had gone to 
Putnam County with the intention of remaining there 
and making it his permanent abode. If, then, Clay 
County was not the place of his permanent abode on the 
5th of May, 1876, and if St. Johns County was not his 
permanent home, he could not have cast his vote in 
either of those counties after that time without a viola¬ 
tion of the constitutional provision which limits his right 
to vote to tile place of his 'permanent abode. 

It is, therefore, respectfully submitted to the consid¬ 
eration of the committee, that if Clay County had been 
abandoned as his place of permanent abode, and he was 
on the 5th day of May, residing at Palatka, in Putnam 
County, with the intention of remaining there and mak¬ 
ing that the place of his permanent abode, he, thereby, 
acquired a political domicil in Putnam County, and was 
entitled to vote in said last-named county, on the 7th day 
of November, 1876. 

It is reasonable to say, that a more liberal rule will be 
adopted in regard to a change of political domicil than that 
which is applied to a change of the domicil of succession as 
to property. The more especially ought this to be the 
case, because the right to vote at the former place of 
abode does not continue until the same right is acquired 
in another. 

McCrary, sec. 46. 

In regard to Win. II. Lanagan, whose right to vote is 
disputed on the ground of non-residence, the testimony 
shows, with reasonable certainty, that Lanagan’s political 
domicil was in Putnam County at the time he voted. 



85 


George W. Lyle, a witness produced by the contestee, 
testifies that Lanagan had lived in Putnam County, but 
he did not know when he left it; that witness took the 
census in said county in 1875, and that Lanagan was not 
a resident at that time; and that his name was taken off 
the registration some years previous to that time, but he 
does not know when it was taken oft’; does not know 
where Lanagan went, nor whether he went with the in¬ 
tention of returning; that his name was not on the list 
of 1875; that he has not seen Lanagan since 1873, and 
does not know whether his name is now on the registra- 
tion-list. 

Lyle, pp. 435, 436, 437. 

Now Ramsauer, another witness introduced by the con¬ 
testee, testifies that Lanagan went to Jacksonville to get 
work, and after working for a while at the ship-yard, he 
run on a 1 oat on the river; that when he left Palatka, 
witness expected him back ; that he had been back sev¬ 
eral times; that lie left Palatka to get work ; that he ex¬ 
pected him back again, and considered Putnam County 
his home. Witness says he does not know what Lana¬ 
gan intended, but he always wrote that he expected to 
come home—his child and his property was in Palatka. 

Ramsauer, p. 438. 

It is to be observed, that Lyle states that he does not 
know when Lanagan left the county, nor does he know 
whether he went with the intention of returning. But 
Ramsauer’s “ testimony shows that he went in search of 
employment; that he expected to come back again ; that 
his child and his property were there, and that in his 
correspondence he reognized Palatka as his home. 

Rosignal, another witness introduced by contestee, 
states that Lanagan voted at Georgetown precinct, in 
Putnam County; that Lanagan said he was registered 
in said county ; that his name was not found on the reg- 


86 


istr ation list, but be made oath that be was a registered 
voter in said county as voted. 

Rosignal, pp. 439, 440. 

The mere statement by a witness that a voter was not 
a resident, without giving facts to justify the opinion, is 
not considered sufficient to throw out such a vote. 

McCrary, secs. 371, 372. 

Mr. McCrary also says, that after a vote has been ad¬ 
mitted, something more is required to prove it illegal 
than to throw doubt upon it. 

McCrary, sec. 371. 

Kow, I submit that the testimony of Lyle and Kam- 
sauerboth of them contestee’s witnesses, does not pre¬ 
sent such facts as justify the opinion, that Lanagan’s 
home and permanent abode were not in Putnam County, 
and is not sufficient to throw out his vote. And even if 
it threw a doubt upon it, something more, as we have 
just said, is necessary to prove it illegal. 

Besides, the place where a man’s property is, where 
his family is, the place to which he goes back from time 
to time when no temporary occasion calls him elsewhere, 
is his home. 

Cessna vs. Myers, 42d Congress. 

McCrary, appendix, p. 428. 

The question of residence being one largely of inten¬ 
tion, the fact of voting is very strong evidence of the 
voters’ intention to claim a domicile at the place of his 
voting. 

McCrary, sec. 372. 

In the absence of proof thatLanagan had voted in any 
other county, at any recent election, the evidence shows, 
with satisfactory certainty, that his domicile was in Put¬ 
nam County at the time he voted. 

The contestee contends that twelve votes cast in Put- 


87 


nam County be rejected on the ground, that when they 
voted they did not present a certified copy of their natu¬ 
ralization papers, or of their intention to become natural¬ 
ized. 

Answer, p. 21. 

It will be seen, by reference to the testimony, that all 
of them had been naturalized, or had declared their in¬ 
tention to become so: and it will also be seen that 
none ot them were challenged except James Kenneday, 
and that he was sworn before he was allowed to vote. 

John Smith, pp. 418, 419; 

George Muller, p. 423 : 

John M. Ivors, p. 424; 

James Kenneday, p. 425; 

Edward Boyle, p. 426; 

John Beale, p. 427; 

Peter Peterman, p. 428 ; 

Andrew Shally, p. 429; 

Frederick Tally, pp. 429, 430; 

Jas. II. Solowski, p. 431; 

Bernard Lillenthal. p. 439; 

Wm. Ivers, p. 422. 

The question as to the right of these twelve persons 
to vote, is respectfully submitted to the committee on the 
argument already made by the contestant in regard to 
the foreign vote in the County of Alachua.. 

See this brief, p. . 

As to specifications 24 and 25, in reference to the elec¬ 
tion in Putnam County, and contained in the contestee’s 
answer, there is no evidence offered.,, and no attempt to 
prove them. 

Answer, p. 21.. 


88 


Bradford County. 

The contostee, in his answer, asks that ihe returns 
from the Lake Butler precinct, in Bradford County, be 
rejected on the following grounds: 

First. That the same is tainted with fraud and does 
not return the true vote cast thereat; 

Second. Because thirty persons voted at said precinct 
who were not registered voters. 

Answer, p. 19. 

As to the first of the above grounds there is no attempt 
to establish it by proof. 

In support of the second ground it is only attempted 
to be shown that one Isaac Edwards and one Thomas J. 
Finley were not on the registration list. 

Edwards states that his name was not found on the 
registration list, but says he is a native of Florida; has 
lived there all his life ; that ho was qualified to vote, and 
swore his vote in. 

Edwards, p. 389. 

Thomas J. Finley testifies that his name was not found 
on the registration list, but that he had registered nine 
years before, and' had all the qualifications of a voter, 
and was sworn to it. 

Finley, p. 389. 

The testimony of Tucker does not establish any mate¬ 
rial fact. 

Tucker, p. 390. 

The evidence shows that Edwards and Finley had the 
right to vote, and it is nowhere rebutted. 

As to the allegation contained in the 14th and 15th 
specifications of the contestant’s answer, there has been 
no attempt made to prove them. 

Answer, p. 19. 



89 


Brevard County. 

The contestee, in the 30th specification in his answer, 
asks that the county returns from Brevard county be re¬ 
jected on three different grounds : 

First . Because the inspectors at Fort Drum precinct 
in said county fraudulently refused to open the polls at 
said precinct for the purpose of depriving electors of the 
right to vote, whereby a large number of electors who 
desired to vote for the contestee were deprived of the 
privilege of doing so. 

Answer, p. 22. 

It will be seen by the examination of the testimony of 
J. M. Lee and Quinn Bass, the only witnesses to this 
point, that there is an utter failure to prove this allega¬ 
tion. 

Lee, pp. 445-’6; 

Bass, pp. 442-3-4. 

The rejection of the county returns of said county on 
the ground alleged and on the testimony offered cannot 
be sustained. To authorize such rejection, it is essen¬ 
tial for the contestee to prove that the polhitFort Drum 
was corruptly suppressed, which he has not done and 
could not do. 

Besides, under the laws of Florida, as they then exist¬ 
ed, electors could vote at any precinct in the county; 
and the testimony of Lee shows that some of the electors 
at Fort Drum precinct did vote, at that election, at Lake 
View precinct in said county. 

As to the 2d and 3d grounds set out in said 30th spe¬ 
cification in the answer, it is sufficient to remark that 
there is no attempt to prove them. 

Suwannee County. 

The contestee, in the 5th specification in his answer, 
asks that 150 be added to bis vote in Suwannee County, 
12 


90 


on the ground that such number of lawful votes offered 
to vote for him at Welborn Precinct, in said county, and 
at the court-house and other precincts, and were denied 
the right, without fault on their part. 

Answer, p. 17. 

[Note.— There is not one particle of evidence offered 
to sustain this allegation.] 

The contestee also asks that 30 votes* cast for the con¬ 
testant at the court-house, Welborn, and other precincts 
in said county be rejected, because they were cast by per¬ 
sons who were coerced &nd intimidated by threats to vote 
contrary to their free choice. 

Answer, pp. 17, 18. 

No evidence is offered to support this allegation. 

The contestee further asks that seven (7) votes be de¬ 
ducted from the vote of the contestant, because they were 
cast by non-residents, persons not registered, and other¬ 
wise disqualified to vote. 

Answer, p. 18. 

In support of this last allegation, it is only attempted 
to be shown, that S. W. Parvell, John Williams, and W. 
L. Keller voted at the Welborn Precinct, and that their 
names were not on the registration-list; and that one 
Moses Driver voted at said precinct without being of law¬ 
ful age. 

Thomas S. Harris, a witness for the contestee, states 
that he knew John Williams but was not personally ac¬ 
quainted with S. W. Parvell and W. L. Keller; that he 
knows the name of Williams was not on the registration 
list, and believes the other two were not; and that theor- 
§ dinary oath for challenged voters was administered to 
them, and that but one oath was administered that he 
knows of. 

Harris, p. 529. 

Now, George W. Thralls, a United States Supervisor 


91 


at said precinct, and also a witness for the contestee, tes¬ 
tifies that there were two forms of oath administered 
there that day, one to those who were on the registra¬ 
tion list improperly or not at all, and the other to those 
who had not been registered at all. 

Thralls, p. 532. 

Harris says that these three men were not challenged 
before they voted, and that their names were not found 
on the registration list. 

Harris, p. 530. 

How, Thralls swears that he was there all day, until 
the vote was counted and all the papers made out and 
sealed up, and states, without qualification, that all three 
of these men were challenged, on the ground that their 
names were not on the registration list. 

Thralls, pp. 532-534. 

Harris states that but one oath was administered that 
he knows of (that is, that he remembers), while Thralls 
swears positively that two oaths were administered, one 
to those whose names were not on the registration list, 
and one to those who were improperly on the list. So, 
that owing to the contradiction of the contestee’s own 
witnesses, he has failed to prove that these three persons 
did not take the oath required to be taken in such cases, 
and thus leaving to operate in full force the legal pre¬ 
sumption that the officers of the election discharged their 
duty in allowing them to vote, and that they took the 
necessary oath before voting. 

Harris states that he believes they voted for the contest¬ 
ant; but it is submitted that his belief is not sufficient to 
establish the fact that they did so ; besides, it is not com¬ 
petent to prove how they voted, until it is first shown 
that their votes were illegal, wffiich has not been done. 

McCrary, p. 142. 

As to Moses Driver, the evidence given by Thralls 


92 


(who is the onlv witness who testifies in regard to the 
matter) is wholly insufficient to establish the fact that 
said Driver was under age when lie voted on the 7th 
November, 187G, 

Thralls, p. 533. 

Thralls, a U. S. supervisor and a Republican, testifies 
that the election was fair. 

Thralls, p. 534. 

[Note. —The testimony taken by the contestee in rela¬ 
tion to the election in Suwannee County proves nothing 
for him, and cannot affect this case one way or the other.] 

Volusia County. 

In the 26th specification of his answer, the contestee 
asks that the returns from this county shall be rejected 
on the following grounds, viz: 

1. Because the registration of voters in said county 
was made in disregard of law; that minors, aliens, non¬ 
residents, and all male persons were permitted to regis¬ 
ter, and did register, by the registering officer, in disre¬ 
gard of the law and his duties under the law. 

Answer, p. 21. 

2. That the county commissioners for said election es¬ 
tablished six polling places where the polls had never 
been opened at any prior election, and wholly failed to 
cause any notice of said election to be given in said 
county at any precinct. 

3. That the inspectors and clerks of election in said 
county took no oath of office. 

Answer, p. 21, 22. 

[Note.— No evidence is offered to sustain any of the 
allegations contained in this specification.] 

But, without having alleged it, the contestee attmepts 
to show that Frank Boremaster and Roderick Gillespie, 


93 


being of foreign birth, voted at Beresford precinct .No. 
4, in said county, without producing evidence ot their 
right to do so. 

Without waiving my objection to the contestee being 
allowed to prove anything that he has not alleged, I now 
proceed to examine the testimony in regard to these two 
voters. 

The only testimony offered by the contestee in refer¬ 
ence to Boremaster and Gillespie is that of W. F. Buck- 
n or and Samuel J. Cook. 

Buck nor, pp. 493-’4-’5 ; 

Cook, p. 496. 

Bucknor testifies that Boremaster had declared his in¬ 
tention to become a citizen of the United States, and 
that he was allowed to vote without challenge. 

Bucknor, p. 491. 

Bucknor states that Gillespie came to the United States 
while an infant; that he was challenged, and that upon 
his making a special affidavit, which was enclosed with 
his ballot, he was allowed to vote. 

Bucknor, p. 495. 

The votes of these two persons having been received 
by the Inspector, their right to vote will be presumed 
unless the contrary is shown ; and the burthen of proof 
lies on the party disputing their right to vote, and in order 
to show that Gillespie had no right to vote, it is necessary 
for the contestee to show or prove that Gillespie’s father 
was not naturalized. It is further contended that neither 
of them have been proven to be illegal voters, and, con¬ 
sequently, it is not competent to prove how they voted. 
Upon the testimony in the case, the votes of Boremaster 
and Gillespie should not be excluded, even if such an 
enquiry were authorized by the allegations in the answer 
of the contestee. 

McCrary, secs. 196-195-301. 


94 


Although it is not alleged in the answer, the contestee 
attempts to show that one Henry Clay was compelled, 
against his will, to vote the democratic ticket at Spring 
Garden precinct, in Volusia county, and the only witness 
examined to this point by the contestee is W. R. Fitts. 

Fitts, pp. 525-43-7. 

On examination of the testimony of Fitts, it will be 
seen that it does not make out a case of coercive voting; 
and even if it did, it is overwhelmingly contradicted by 
the testimony of three unimpeached witnesses. 

Chandler, pp. 172-173. 

Broome, pp. 173-174. 

Odum, p. 174. 

It is only attempted to be shown by the contestee that 
one single vote was coerced by intimidation or force, and 
this, too, without having alleged it in his answer, and 
without alleging that a sufficient number were so coerced, 
to have changed the result of the election. 

McCrary, secs. 416-417. 

Nassau County. 

In specification 32 of the answer, the contestee alleges 
that thirty (30) votes were cast for the contestant at the 
Fernandina and other precincts in Nassau County which 
should be excluded, because they were cast by persons 
who were intimidated and coerced to vote against their 
free will and choice. 

Answer, p. 23. 

To sustain this allegation, the contestee produced and 
examined sixteen witnesses, only three of whom stated 
that they voted the democratic ticket, while one states 
that he voted the democratic ticket voluntarily, and 
twelve swear that they voted the republican ticket. 

Of the three first, Gilbert Dorsey is the only one who 



95 


swears that he voted for the contestant, while Columbus 
Dorsey and Louis Watson, the other two, swear that 
they do not know for whom they voted for Congress. 

Cilbert Doasey, p. 409; 

Columbus Dorsey, pp. 409, 410; 

Louis Watson, pp. 411, 412. 

Lonzo Hunter swears he voted the democratic ticket 
voluntarily. 

Hunter, p. 412. 

The following twelve of the sixteen introduced to 
prove that the}’ had voted the democratic ticket under 
compulsion, swear that they voted the republican ticket, 
viz: 

Elbert J. Dorsey, p. 410; 

Joseph Blake, pp. 410, 411; 

Ilarnpt. Gaskins, p. 412 ; 

George Dorsey, p. 413 ; 

Grandison Dorsey, p. 413; 

Thomas Kaiser, p. 414; 

Walter Davis, p. 414; 

James Smith, p. 414; 

Charles Tucker, p. 414; 

Harty Jones, p. 415; 

Edward Basquet, p. 415; 

James Stewart, p, 414. 

Hote.— It is proper here to state, that it does not ap¬ 
pear how Charles Tucker voted, and that as to James 
Stewart, there is no evidence of coercion. 

It is to be observed, that of the three who voted the 
democratic ticket, one (Gilbert Dorsey) was discharged 
as a railroad employee. 

Samuel Petty testifies, that many colored voters, voted 
the democratic ticket. 

Petty, p. 408. 

C. W. Yulee, says, that many of these numbered 


96 


tickets were given to colored men, members of the demo¬ 
cratic club, who came of their own free will and enrolled 
their names. 

Yulee, pp. 415, 416. 

The contestee also asks that ten other votes be de¬ 
ducted from the vote of contestant in said county, because 
they were cast by persons who were not registered voters, 
and by foreign born persons, without producing any evi¬ 
dence of their right to vote. 

Answer, p. 23. 

I now invite the attention of the Committee to the fact 
as it appears in the record, that no attempt is made by 
the contestee to prove that any votes were cast by non¬ 
residents for the contestant. Also, to the fact that while 
his answer lim its him to the number often, he attempts 
to prove that twenty-two foreign born persons voted ille¬ 
gally. But the testimony shows that they were all either 
naturalized citizens, or had declared their intention to 
become such ; and had, in that respect, the qualification 
required by the first section of Article XIY, of the consti¬ 
tution ofFlorida. 

List of Names. 

1. Henry King, p. 398; 

2. Patrick Kelly, p. 399 ; 

3. C. II. Huot, p. 399; 

4. Jean Amen, p. 399; 

5. John A. Ellerman, p. 400; 

6. Albert Glaiber, p. 400 ; 

7. Richard H. Hobirk, p. 401; 

8. M, Downey, p, 401; 

9. John Hass, p. 402; 

10. Henry Peterson, p. 402 ; 

11. John McGuire, p. 402; 

12. Michael Fitzpatrick, p. 403; 

13. Julius A. Klotz, p. 403 ; 

14. Harry Barker, 403 ; 


97 


15. James Kelly, p. 404; 

16. Louis Lange, p. 404; 

17. Gustave Stark, p. 404; 

18. P. W. O. Koenir, p. 405 ; 

19. J. H. Mooney, p. 405; 

20. Louis Lohman, p. 406 ; 

21. Wm. Schmitger, p. 406; 

22. James McGiffin, p. 407. 

Most, if not all of the above persons swear, that they 
voted without being challenged. 

John Alston, one of the Inspectors of election, says 
that he does not remember that any one was challenged 
because he was foreign-born. 

Alston, p, 897. 

Gilbert F. Avery, also an Inspector, swears that natu¬ 
ralization papers were neither called for or demanded. 

Avery, p. 407. 

It is contended that, according to a well settled rule, 
the contestee will not be allowed to prove a greater num¬ 
ber of foreign-born voters than he has alleged in his 
answer. 

It is further contended that each one of the twenty- 
two had, according to the testimony, been either natu¬ 
ralized or had declared his intention to become so, and 
was qualified to vote under the constitution and laws of 
Florida ; and in support thereof, the contestant relies on 
his argument upon the same question which arose in 
Alachua County. 

See ante, p. . 

In regard to the alleged coercive voting at Fernandina, 
the contestant submits that, after a full and impartial 
consideration of all the testimony on that subject, it is 
difficult to resist the conclusion that so many of the 
twelve who voted the republican ticket and were dis¬ 
charged from employment by the railroad company, were 
13 


m 

discharged for some other cause; especially in view of the 
fact that Gilbert Dorsey, who- voted the democratic ticket, 
was also discharged. 


St. Johns County, 

The eontestee asks that ten votes be deducted from the 
contestant’s vote in St. Johns County, because they were 
east by persons who were non-residents of the county? 
and that ten other votes be deducted from contestant’s 
vote in said county because they were east by persons 
who were foreign-born, without producing any evidence 
of their right to vote as required by the laws of Florida, 
Answer, pp. 29, 21. 

The only evidence offered by the contestee to support 
these allegations, is that of Peter Maeken, Nestor Geno- 
var, and Frank B. Genovar. 

Maeken testifies that he was born in Ireland,but that he 
declared his intention to become a citizen of the United 
States, at Albany, New York, on the 11th day of October, 
1876; that he voted at the last general election in the 
State of Florida, and that he did not produce the certifi¬ 
cate of his declaration of intention, because he was not 
required to do so. He also testifies that he considered 
Florida as his home, and that he has not voted anywhere 
else since he has been in the United States ; that he has 
spent the last four winters in the South, and considered 
Florida as his home. 

Maeken, pp. 496, 497. 

Newton Genovar testified that he is a citizenof theUnited 
States; that he has spent part of his time in Cuba; that 
he always bad to obtain a passport when he went there; 
that Florida had always been his home; that he was, 
and is, a registered voter of said county of St. John; 
that Florida had always been his home, and that he has 
never become a subject of Spain. 

N. Genovar, pp. 497, 498. 


m 


Frank B. Genovar testifies that he was born in St. 
Augustine, Florida, that he is a oitizeu of the United 
^States, and not a subject of Spain, and that he is a reg¬ 
istered voter in the county of St. Johns, State of Florida. 

F. B. Genovar, pp. 498-99. 

It is clear from the foregoing testimony, that Macken 
and the two Genovars were entitled to vote. 

As has already been shown, the person seeking to ex¬ 
clude a vote which has been received, must do some¬ 
thing more than cast a doubt upon it, he must prove 
that it was an illegal vote. In this case, not even a doubt 
has been cast upon the right of the two Genovars to vote, 
while in the case of Macken there is scarcely the shadow 
of a doubt. 


Columbia County. 

The contestee, in his answer, asks that the returns 
from precinct Ho. 4, at the probate office in Columbia 
County be rejected on the following grounds: 

1. Because the election at said precinct was fraudu¬ 
lently and illegally conducted, and that the return was 
tainted with fraud and illegality by the acts of the in¬ 
spectors themselves and other persons interfering with 
the election. 

2. That the ballots were fraudulently tampered with 
after being received by the inspectors, in a manner to 
reduce the actual republican vote at said precinct. 

3. That the inspectors at said precinct never returned 
any poll-list, and that some of them fraudulently sup¬ 
pressed it with intent to defraud republican candidates. 

4. That a large number, to wit, one hundred republi¬ 
can electors were placed in arrest corruptly and illegally, 
and coerced and intimidated to vote contrary to their 


100 


free choice and will, at said precinct, who otherwise 
would have voted for contestee. 

5. That twenty-five voted at said precinct who were 
never registered or were non-residents of said county, 
and twenty who were foreign-born, who voted without 
producing evidence of their right to vote. 

6. That the said election was not a fair and free elec¬ 
tion, but was tainted and affected by preconcerted and 
systematic violence, intimidation, and fraud, organized 
and accomplished by democratic partisans. 

Answer, p. 18; 

Specification 9. 

I will now refer to the six several grounds set out in 
said specification 9 in the answer, in the order in which 
I have stated them above. 

1. Was the election at precinct No. 4, probate office, 
fraudulently and illegally conducted, and was the return 
from that precinct tainted with fraud on the part of the 
inspectors and other persons interfering with the elec¬ 
tion ? 

The most searching examination of the testimony will 
fail to show that the election at this precinct was other¬ 
wise than fairly, honestly, and legally conducted, or that 
the returns therefrom were not free from fraud on the 
part of the inspectors or anyone else. 

It is attempted to be shown that one of the inspectors 
at this precinct threw a republican ticket under the ta¬ 
ble and put another in the ballot-box in its place, and 
also that the poll-list was destroyed for a fraudulent pur¬ 
pose, and also that certain persons voted at this precinct 
who were not entitled to vote; all of which will be con¬ 
sidered in their appropriate place under the allegations 
contained in said specification in the answer. 


101 


2. Were the ballots at this precinct fraudulently tam¬ 
pered with after being received by the inspectors in a 
manner to reduce the actual republican vote at said pre¬ 
cinct? 

Without waiving the objection to the legal insufficien. 
cy of this allegation, but insisting that it should have 
been alleged that a sufficient number of ballots had been 
fraudulently tampered with to change the result, I will 
now proceed to examine the testimony bearing on the 
question presented. 

The only attempt made to sustain the allegation is, 
that one single voter handed a ballot to Joseph Daugh¬ 
try, one of the inspectors at said precinct ]S r o. 4, and that 
said Daughtry substituted another ballot in its place, and 
put it in the ballot-box; and for this purpose the con_ 
testee introduces as witnesses Frank Small, Peter Tay¬ 
lor, and Benjamin Jordan. 

An examination of the testimony of Small, Taylor, and 
Jordan will show that they contradict themselves, and 
each other, to such an extent as to render their statements 
altogether unreliable, even if they had not been (as I 
shall show) rebutted by other testimony. 

Small says it was in the afternoon that Daughtrey 
threw away the colored man’s ballot and substituted 
another in its place. 

Small, p. 447. 

Taylor says it was between 10 and 11 o’clock, 

Taylor, p. 467. 

Small says the ballot-box was inside, and at the door. 
Small, p. 448, 

Taylor says the ballot-box was right at the window 
when the votes were handed in. 

Taylor, p. 466. 


102 


4 


Jordan says the voting was through the door. 

Jordan, p. 498. 

Small says the colored man’s ballot was open. 

Small, p. 448. 

Taylor says it was folded. 

Taylor, p. 467. 

Small says he was standing outside the door where the 
polls were when Daughtrey threw away the ticket. 

Small, p. 448. 

Taylor says that Small, at that time, was standing out¬ 
side, and by the window. 

Taylor, p. 466. 

Taylor says that he, (himself) was there from about 8 
to 10 o’clock, when he went to the school-house and 
voted. 

Taylor, p. 466. 

And then he contradicts himself by declaring that it 
was between 10 and 11 o’clock when Daughtrey threw 
the ballot away. 

Taylor, p, 467. 

Small says that he was at the school-house precinct 
early in the morning, and after he voted, he went to Pre¬ 
cinct No. 4. 

Small, p. 446. 

In another part of his tettimony he says he was pres¬ 
ent at Precinct No. 4 ,in the afternoon. 

Small, p. 447. 

In view of these contradictions of each other, and of 
themselves, their testimony, even if it were not contra¬ 
dicted by other witnesses, cannot be considered reliable. 

So far as the witness Small is concerned, a number of 
unimpeached witnesses swear that he is a notorious liar, 
and wholly unworthy of belief. 

Thompson, pp. 169-170. 


103 


Kirby, p. 171. 

Potsdamer, p. 170. 

Henry, p. 170. 

As to Benjamin Jordan, the only other witness who 
states that Daughtrey threw away the ballot and substi¬ 
tuted another in its place, Thompson, an unimpeached 
and credible witness, says that his character was uni¬ 
versally known as bad ; and J. E. Henry swears that his 
character is very bad, and that he is as big a liar as Frank 
Small could possibly be. 

Thompson, p. 170. 

Henry, p. 170. 

Kow the testimony of Small, Taylor and Jordan, all 
witnesses for the contestee, is not only resting under a 
heavy cloud, but is conclusively rebutted, not only by the 
testimony of Daughtrey himself, but also by the testi¬ 
mony of Robert Brown. 

Daughtrey swears that lie did not at any time during 
that day substitute any ticket given to him by a voter 
fer another which he did not vote. 

Daugherty p. 142. 

Brown swears he was a challenger at that precinct; 
that he was there during the whole day, except about live 
minutes, and that he was inside the room with the in¬ 
spectors; that he observed strictly what was done during 
the election on that day: that he observed every person 
who presented their ballots to the inspectors; that he was 
in a position where he could see the votes handed to the 
inspectors and the disposition of the votes so handed, and 
that he did not see any tickets handed to Daughtrey or 
either of the other inspectors dropped by them and other 
tickets substituted by them ; and that if such had been 
done he would undoubtedly have seen it, as he was most 
of the day standing about six inches from Daughttey. 

Brown, pp. 149-150-151. 


104 


Daughetry says that Cato Carter and George Cole, 
both republicans, served with him as inspectors at said 
precinct, and that he (Daughtrey) received the votes and 
handed them to Cole, who put them into tho box. 

Daughtrey, p. 141. 

Brown swears that the tickets were handed to Daugh¬ 
trey, who passed them to the second person, who put 
them in the box. 

Brown, p. 150. 

This fully rebuts the testimony of the witnesses for 
the contestee, who state that Daughtrey put in the box 
the ballot in question; and all the more conclusively, 
because Small, Taylor, and Jordan have been shown to 
be unworthy of belief. 

As has been seen, Small and Jordan testify that the 
voting was through the door. Daughtrey and Brown 
both testify that the voting was through the window. 

Daughtrey, p. 142; 

Brown, p. 150. 

Daughtrey says the window was in the east end of the 
building, and that the door was on the south sid^ of the 
house, and not on the side where the voting was done. * 

Daughtrey, pp. 142-144. 

The testimony of Daughtrey and Brown, that the vot¬ 
ing was done through the window, is corroborated by 
Taylor, a witness for contestee, and also by Douglass, p. 
465. 

Taylor, p. 466. 

This fact being established by the testimony of both 
parties to this contest, it follows that Small and Jordan 
disregarded the truth when they swore that the voting 
was done at the door. 

Taylor says he was standing outside of the window on 
the ground, and that the ballot-box was right at the 
window. 

Taylor, p. 466. 


105 


Daughtrey says that the voters stood on the ground in 
the street; that the window-sill was about five feet from 
the ground, and that the ballot-box was a very little 
above the window-sill. 

Daughtrey, p. 142. 

Now, Taylor himself says that Daughtrey was seated 
while he was there. 

Taylor, p. 466. 

If the window-sill was five feet from the ground, and 
the ballot-box only a very little above the sill, and Tay¬ 
lor was standing ten feet from the window, as he testifies 
he was, and Daughtrey was sitting down, as Taylor 
swears he was, then I submit that it was impossible for 
Taylor to see Daughtrey throw away one ticket and sub¬ 
stitute another in its place, without holding his hands 
above the ballot-box when he did it, which, if he had 
done, the other inspectors, who were so near to him, 
must necessarily have seen him, as well as others, both 
inside and outside the house. And just at this point I 
may be pardoned for expressing surprise that the con- 
testee did not produce as witnesses Inspectors Cole and 
Carter, both of whom were Republicans and his political 
friends, and who, from their relative position with 
Daughtrey and the ballot-box, must necessarily have 
seen any fraudulent manipulation of ballots by Daugh¬ 
trey; and that Cole at least was not produced to prove 
that Daughtrey put the tickets in the box as they were 
received from the voters. 

Before dismissing this point in the case, I beg to call 
the attention of the committee to the fact that Taylor 
contradicts himself by saying that he stood upon the 
ground by this side of the window, and by afterwards 
stating that he was ten feet off from the window. 

Taylor, p. 466. 

3. That the inspectors at said precinct never returned 

14 


106 


any poll-list, and some of them fraudulently suppressed 
it with the intent to defraud republican candidates. 

Answer, p. 18. 

A lame attempt is made to prove this by the testimony 
of one Alonzo A. Hoyt, and one Cato Carter. 

Hoyt says that after the election, Cato Carter told him 
that the poll-list had been destroyed by one of the in¬ 
spectors ; and that he felt quite sure it was Daughtrey 
who destroyed it, because he saw him tear up a book sim¬ 
ilar to it, which he took to be the poll-list. 

Hoyt, pp, 573, 574. 

Cato Carter testifies that a poll-list was kept at that 
precinct, and that it was thrown down in the office un¬ 
der the table by Calhoun Jones, the clerk; that Jones 
asked, what shall we do with the poll-list; and that Mc- 
Lawren, a U. S. supervisor said they did not have any 
use for it, and it was thrown down upon the floor. 

Carter’s testimony shows that he was a republican in¬ 
spector at said precinct, and that there was no fraud in 
fact, and none intended. 

Carter, pp. 454, 455. 

4. That a large number, to wit, 100 republican elect¬ 
ors were placed in arrest, corruptly and illegally, and co¬ 
erced and intimidated to vote contrary to their free 
choice and will at said precinct, who otherwise would 
have voted for contestee. 

Answer, p. 18. 

There is no evidence which even tends to show that 
there were any arrests made, or intimidation used at this 
precinct, except it may be the testimony of Benjamin 
Jordan, by whom the attempt is made to prove that three 
colored men were shut up in Hart’s gin-lot. 

Jordan, p. 947. 

I will here remark that Jordan is the same witness 


107 


whose reputation for truth has been discredited by the 
witnesses Thompson and Henry. 

See p. 170. 

Jordan testifies that of these three colored men he 
only knew Jim Hamilton, who told him that he was com¬ 
pelled to vote the democratic ticket. 

Jordan, p. 947. 

This is mere hearsay testimony, and does not estab¬ 
lish the fact.—The contestee should have produced Ham¬ 
ilton himself. 

The evidence does not show that these two men actu¬ 
ally voted ; nor does it show for whom they voted. Jor¬ 
dan, himself, swears that he does not know for whom 
they voted for Congress. 

Jordan, p. 950. 

This is the only attempt to prove illegal arrests and 
intimidation at precinct Ho. 4; and even if Jordan’s 
character was above suspicion, and his statement true, 
the testimony would not warrant any deduction from the 
vote of the contestant. 

Besides, it is proved by a number of witnesses that 
the election at said precinct was perfectly fair, quiet, 
peaceable, and honestly conducted. 

Doughtrey, p. 143; 

French, p. 151; 

Brown, p. 150. 

5. That twenty-five voted at said precinct who were 
never registered or non-residents of said county; and 
twenty who were foreign-born who voted without pro¬ 
ducing evidence of their right to vote. 

Answer, p. 18. 

To sustain the first branch of the above allegation, 
Cato Carter, a republican inspector of said precinct, was 
introduced, who states that the following names were 
not found on the registration list, to wit: 


108 


1. Americus Bivins; 

2. E. P. Hawkins ; 

3. J. S. Boden ; 

4. Jas. W. Hee; 

5. O. Thomas ; 

6. J. C. Grow ; 

7 Isadore Holt; 

8. James Griffin ; 

9. W. D. Bellany; 

10. John'.W. Williams; 

Carter, p. 454. 

It is to be observed that it does not appear from 
Carter’s testimony, how or for whom said persons voted. 
He states that he does not know how any of them voted, 
except one, and does not state how he voted. 

Carter, p. 455. 

Isaac E. Douglass, a witness for contestee, says that 
Win. Bellany was not a citizen of Columbia County, but 
lived on the Hamilton County side of the Suwanee river, 
and kept the bridge across that stream for Cone & Peo¬ 
ples, and that he had been so employed for four or five 
months. 

Douglass, p. 462. 

[Note: —TIis does not prove that it was Bellany’s per¬ 
manent abode.] 

Douglass also testifies, that when Bellany was chal¬ 
lenged the latter went away, but came back again in 
fifteen or twenty minutes with Mr. Cone and took the 
oath and voted. 

Douglass, p. 462. 

It is fairly to be deduced from the testimon}' of Doug¬ 
lass himself, that Bellany was only temporarily em¬ 
ployed by Cone & People to keep their bridge, and that 
he did not have his permanent home in the county of 
Hamilton, and that he established his citizenship in Col- 


nmbia County by taking the required oath before he was 
allowed to vote. 

The mere statement by a witness that a voter was not 
a resident, without giving facts to justify the opinion, is 
not sufficient to throw out such a vote. 

McCrary, secs. 371, 372. 

After a vote has been admitted, something more is re¬ 
quired to prove it illegal than to throw doubt upon it. 

McCrary, sec. 371. 

The illegality of Beliany’s vote not having been es¬ 
tablished, it is not competent to inquire how he voted. 

McCrary, secs. 195, 196, 301. 

Douglass also states, that James W. Hee moved from 
Baker county to Columbia County, about two months 
before the election; that he knew that J. W. Hee was a 
citizen of Baker County, because he chipped boxes near 
him, in said county, year before last, and that Hee ac¬ 
knowledge that he lived in Baker County, and had not 
lived here long enough. 

Douglass, p. 465. 

[Note. —It is to be observed, that Douglass did not 
prove that either Bellamy and Hee voted for any other 
than George F. Drew for governor.] 

Douglass, pp. 464, 465. 

He says he cannot state what other candidate besides 
the governor, either Ballamy or Hee voted for. 

Douglass, pp. 464, 465. 

But Douglass also testifies, that when Hee came up to 
the polls, Mr. Brown asked some one of the Inspectors 
or supervisors it they thought he could vote, Brown stat¬ 
ing that Hee had been living at his place about two 
months, and that he was a registered voter in Baker 
County, that the supervisor told him he thought he could 
vote the State and national ticket, if sworn, and that he 


110 


was then sworn, as Brown tore off the county officers 
names from his ticket for him and lie voted. 

Douglass, p. 462. 

Now in one place in his testimony, Douglass swears 
that the name of the candidate for Congress was left on 
the ticket. 

Douglass, p. 463. 

And yet in another place in his testimony he swears 
that he did not read any other name on the ticket but 
that of George F. Drew for Governor. 

Douglass, p. 465. 

How-could he swear that the name of the candidate for 
Congress was left on the ticket unless he had read it ? 
How far this palpable contradiction of himself shall or 
ought to affect the credibility of this witness, I leave it to 
the Committee to determine in the light of the authorities 
cited in reference to the preceding case of Bellany. 

McCrary, secs. 371-372-195-196-301. 

It is also attempted to be shown by the witness, 
Douglass, that Americus Bivins, who voted at said pre¬ 
cinct, was a penitentiary convict, and not qualified to 
vote, and that he was unregistered. 

Douglass, p. 463. 

But Douglass also testifies that Bivins was sworn 
before he voted. 

Douglass, p, 463. 

It is not proven for whom Bivins voted. Witness 
thinks he was a democrat, because he saw him riding 
with the democrats. 

Douglass, p. 463. 

It is contended that Bivins’ conviction of crime has not 
been proven in accordance with the established rules of 
evidence ; that it has not been proven how he voted, but 
that it has been shown that he was sworn before he was 


Ill 


allowed to vote; and that his vote having been received, 
it is to be presumed that he was a legal voter until the 
contrary is proven, which has not been done. 

The parol testimony of Geo. G. Keen is also offered to 
prove the conviction of Bivins and his sentence to the 
penitentiary. 

Keene, p. 478-479. 

Keene swears that he does not know whether Bivins 
was pardoned after conviction. 

Keene, p. 479. 

Kow, it is submitted that if Bivins voted, and was re¬ 
quired to take the oath before he was allowed to vote, 
and his vote was received by the sworn inspectors of the 
election, it will be presumed that he swore that he was 
not disqualified by the judgment or sentence of any 
court, as required by the statute of Florida (see Pam¬ 
phlet Acts 1868, pp. 5-6), and nothing short of legal 
proof of his conviction could vitiate his vote. 

It is also attempted to be shown by the witness 
Douglass, that one John Williams voted at said pre¬ 
cinct, and that he was a convict and thereby disqualified 
as a voter. But the witness only states that Williams 
was said to be a convict, and further states that he was 
challenged by a democratic challenger ; that his name 
was not found on the registration list, but that he was 
sworn and voted, and was generally considered a demo¬ 
crat. 

I submit the case of Williams upon the argument pre¬ 
sented in the case of Bivins, and contend that it has not 
been legally shown that Williams was a convict, nor 
has it been shown how he voted; and I contend that 
the same presumption in favor of his legal right to vote 
arises in his case, as does in the case of Bivins. 

Their right to vote, (after their votes have been re¬ 
ceived by the election officers) will be presumed, until 


112 


the contrary is proven in some legal way; which has not 
been done here. 

McCrary, sec. 87. 

It is positively proven by one of the inspectors, that 
all who voted at said precinct, whose names did not ap¬ 
pear on the registration-list, took not only the oath re¬ 
quired of persons who were challenged, but also the oath 
that their names had been improperly taken from the 
registration list. 

Daughtrey, p. 141. 

This is not contradicted, but it is corroborated by the 
testimony of Carter, another inspector at said precinct, 
who says there were persons voting there, who were 
sworn before they were allowed to vote, and he does not 
state that any of the ten whose names he gives as not be¬ 
ing on the registration-list were not sworn. 

Carter, p. 455. 

Alonzo A. Hoyt, who was at that time the clerk of 
the circuit court tor Columbia county, and as such the 
custodian of the registration-books of said county, states 
that soon after the election he examined said books to 
see it certain persons had voted whose names were not 
registered. He was the republican candidate for the 
State Senate at that election, and doubtless made a 
searching examination, and only gives the names of seven 
persons who thus voted at precinct No. 4, to wit: 

1. E. P. Hawkins; 2. J. S. Boden ; 3. Jas. N\ ITee : 
4. O. Thomas; 5. Isadore Holt; 6. Wm. Bcllany; 7. 
J. C. Grow. 

Hoyt, p. 573. 

It is to be observed that all these names except that of 
J. C. Grow are included in the list given by Carter, and 
the proof is (as has been seen) that all were first sworn 
before they were permitted to vote. 

As to the foreign-born persons who are alleged to 


lie 


have voted without producing evidence of their right to 
vote, it is only attempted to prove five votes of this char¬ 
acter in the entire county ; and it will be seen from the 
evidence of the contestee’s witnesses, that all of these five 
persons had either been naturalized or had declared their 
intention to become so ; that they were not challenged; 
that they had their papers and would have produced 
them if they had been asked to do so. 

In order to show this, I refer to their testimony: 

Pueschel, p. 453. 

Crowley, pp. 453, 454. 

Potsdower, pp. 456, 457. 

Da Ferro, pp. 457, 458. 

Young, pp. 458, 459. 

Touching these five votes, I respectfully refer the com¬ 
mittee to the argument submitted in reference to similar 
votes in the county of Alachua* See page 

6. That said election was not a free and fair election, 
but was tainted and affected by preconcerted and sys¬ 
tematic violence, intimidation, and fraud, organized and 
accomplished-by democratic partisans. 

Answer, p. 18. 

[Note. —It is enough to say that there is not to be 
found iu the whole record testimony to sustain this alle¬ 
gation.] 

The contestee asks that thirty votes received and 
counted for contestant at precinct No. 1, in Columbia 
County, shall be deducted from contestant’s vote, on the 
ground that they were cast by persons who were not 
registered and by non-residents of the county, and were 
obtained by coercion, intimidation, and fraud on the 
part of Democratic partisans. 

Answer, p. 18. 

To sustain one branch of this allegation, the contestee 

15 


i 


114 


examines A. D. Holland, one of the inspectors at said 
precinct, and A. A. Hoyt. 

Holland states that the names of the following per¬ 
sons, who voted at said precinct, were not found on the 
registration list, to wit: 

1. Green A. McElroy; 2. Wm. B. MeElroy; 3. Jas. 
F. Hunt; 4. Cyrus McElmore; 5. Thos. F. Luke; 6. 
C. 1). O’Quinn; 7. Oliver Simpson; 8. A. Peeler; 9. 
David Wilt; 10. A. J. Martin; 11. Rob’t Stewart; 12. 
Allen Sauls; 13. J. H. Wilson. 

Holland, p. 451. 

Holland testifies that these persons were required to 
take the oath prescribed by the statute before they were 
allowed to vote. 

Holland, p. 451. 

Hoyt testifies that thetthirteen names mentioned by 
Holland were not found on the registration list when he 
examined it after the election. 

Hoyt, p. 573. 

Of these thirteen persons, the contestee examines seven 
only as witnesses, and they all testify that they had been 
registered, and that they took the necessary oath before 
voting. 

Hunt, p. 461; 

C. McElmore, p. 468; 

Luke, p. 475; 

O’Quinn, p. 479; 

G. A. McElroy, pp. 479, 480; 

W. B. McElroy, p, 480; 

Wilson, pp. 484, 485. 

The legality of the votes of these seven persons, and 
of all the rest on the list given by Holland and Hoyt, is 
conclusively shown by the testimony of W. M. Ives, one 
of the inspectors at that precinct, who swears that he ad¬ 
ministered to all whose names were not found on the 


115 


registration list the registration oath, and also the oath 
that their names had been improperly stricken from the 
registration list, and that he read these oaths from the 
Statutes of Florida. 

Ives, pp. 167, 168. 

This is not contradicted by either Holland or Hoyt, 
but, on the contrary, Holland says they were.sworn. 

Holland, p. 451. 

It is attempted to be shown by the testimony of Al¬ 
fred Green that one John Sloan, who was a citizen of 
another county, voted for contestant at precinct Ho. 1; 
but an examination of Green’s testimony will show that 
he does not prove that Sloan voted at all, nor for whom 
he did vote. 

Green, p. 469. 

The contestee asks that ten votes be deducted from the 
vote of the contestant at precinct Ho. 1, because they 
were cast by persons alien-born without producing any 
evidence of their right to vote. 

Answer, p. 19. 

It has been already shown that only five such votes 
are attempted to be proved in Columbia County, and 
while it does not appear at what precinct they all voted, 
it has been shown that they were either naturalized or 
had declared their intention to become so ; that they were 
not challenged; that they were registered, and would 
have produced their papers if they had been called for. 

The contestee also asks, that ten other votes be de¬ 
ducted from the vote of the contestant at said precinct, 
because they were influenced for him by bribing, and were 
purchased. 

Answer, p. 19. 

The only testimony offered to sustain this grave 
charge, is that of the witness, Frank Small, who has 
been so effectually discredited, and who says that Eddy 


116 


Watson, a democrat, told John Hampton, a republican, 
that if he would vote the democratic ticket, he would 
give him five dollars, and that Hampton did afterwards 
vote the democratic ticket. 

Small, p. 447. 

Even if Small could be believed, and the facts stated 
by him were true, the testimony would be wholly insuffi¬ 
cient to make out a case of bribery or corrupt purchase 
under any known rules of evidence recognized in either 
judicial or legislative tribunals. 

It is proper here to observe, that although it is not al¬ 
leged in the answer, the contestee, nevertheless, attempts 
to prove that the printed blanks used in making the re¬ 
turns from precinct Ho. 1, indicates fraud on the part of 
the Inspectors at that precinct, and for this purpose he 
introduces as witnesses, A. D. Holland, Amos Jerry and 
Jesse Harden. 

I now invite the most searching examination of the 
testimony of these witnesses in regard to these printed 
blanks, to which the following references are given: 

Holland, pp, 449, 450; 

Jerry, pp. 459, 460; 

Harden, pp. 472, 473. 

The testimony of Holland, Jerry and Harden does not 
prove, indeed, does not even create a suspicion, that 
there was any thing wrong or fraudulent in connection 
with the printed blanks used in making the returns from 
said precinct. While the testimony of Ives, one of the 
Inspectors, clearly proves that there was no fraud either 
attempted or accomplished. 

Ives, p. 169. 

Besides it is neither alleged or proven that the contes¬ 
tee dost a single vote by reason of the blank certificates 
which were used in making the returns from said pre¬ 
cinct. 


117 


Although it is not alleged in the answer, the contestee 
attempts to prove by the witness, Holland, that the elec¬ 
tion at Precinct No. 1 was vitiated by reason of the in¬ 
spectors at that precinct requiring voters to open their 
tickets. 

Holland states that the object in requiring them to vote 
openly was, that all the inspectors thought it would pre¬ 
vent any one voting more than one ticket at a time. 

Holland, p. 450. 

Ives states that voters were requested to open their 
tickets so as to guard against double ballots, and that it 
was not done to expose any man’s ticket, but to prevent 
fraud. He further states that no one was required to ex¬ 
pose his ticket, but merely to unfold his ticket so as to 
satisfy the inspectors that but one ballot was cast by any 
one voter; and that one of the inspectors showed the 
voters at the time that by holding both ends of the ticket 
together, the fact of a single ballot was displayed with¬ 
out destroying its secrecy. 

Ives, pp. 168, 169. 

The testimony of both Holland and Ives shows that 
there was no intention to violate the secrecy of the bal¬ 
lot, and there is no law, which, upon the state of facts 
here shown, can authorize or require the rejection of the 
returns from this precinct. 

Holland, himself (a republican inspector), states that 
he received the ballots and folded them, and put them in 
the box, and that it was not his intention to see how 
they voted. 

Holland, p. 451. 

The contestee undertakes to prove by George A. Ha- 
gin and John F. Sample, that one Joseph Young, a dem¬ 
ocrat, asked a colored man, at the Colored Academy pre* 
cinct in Columbia County, to see his ticket, and while he 
was speaking to him, slipped his ticket and gave him 
another. 


113 


The contestee also attempts to prove by Benjamin Jor¬ 
dan, that Rossom Young, Charles Jones, himself, and 
Henry Simpson, were illegally prevented from voting at 
said last-mentioned precinct. 

It is quite sufficient to say, that there is no allegation 
in the answer of the contestee in regard to the election at 
this precinct, and that all the testimony taken in refer¬ 
ence to it is impertinent. 

Without waiving this objection to the testimony, I 
would call the attention of the committee to the fact that 
neither Hagin or Sample prove how the colored man in 
question voted for Congress. 

Hagin states that soon in the morning he was at the 
school-house, and saw Joseph Young walk to a colored 
man and ask him to let him see his ticket, and that while 
he was talking to him he slipped his ticket and gave him 
another one; that soon after witness was called off, but 
old John F. Sample to follow 7 up the colored man, and 
see if it was a democratic ticket Joe Young gave him , and take 
it away and tell him better. 

Hagin, p. 469. 

Sample states that Hagin told him to “ follow him up 
a,nd see if he voted that ticket ,” and says he did so. 

Sample, p. 471. 

Sample states that a while after, the poll opened and 
the man w T ent up and voted. 

Sample, p. 471. 

How, Sample, according to his own testimony, had the 
opportunity of undeceiving the colored man in regard to 
his ticket, because he says he was near enough to him to 
read the name of George F. Drew on the ticket in his 
hand which Young gave him. 

Sample, p. 472. 

And now 7 in the face of his own testimony, show¬ 
ing most conclusively that he did have the time to tell 


119 


the colored man, and the opportunity to do so, he blindly 
swears that he did not inform the man of the trick before 
he voted, because he did not get a chance, “ he voted so 
quick,” and also states that he intended to inform the 
man, and that it was his desire to do so. 

Sample, p. 471. 

Hagin did not see the man vote. Sample does not 
undertake to say for whom lie voted for Congress, and 
all he pretends to know about the ticket which the man 
voted rests upon a conversation which he says he had 
with the man after he voted, from which only vague and 
uncertain inferences can be drawn. 

Sample, p. 471. 

Both Hagin and Sample state that they never saw the 
man before, and although their attention was, according to 
their own declarations,particularly directed to him under 
very unusual circumstances, neither of them are able to 
gi veany description of the man ; and yet both these wit¬ 
nesses, who were so blind to the personal appearance of 
this colored man, pretend to hav§ known his very 
thoughts, when they say that wlienYoung asked him to let 
him see his ticket the colored man “ did not think he 
meant any harm,” and handed Young his ticket. 

Benjamin Jordan, whose credibility has been so strong¬ 
ly impeached, is the only witness relied on by the con- 
testee to prove that Bossom Young, Charles Jones, Ben¬ 
jamin Jordan, and Henry Simpson were illegally pre¬ 
vented from voting at said precinct. 

Jordan states that he saw Charles King, one of the 
officers of the election, challenge the above-named per¬ 
sons, and would not allow them to vote. 

Jordan, p. 948. 

But even this bold swearer did not undertake to say 
that the said four persons, or any of them, were legal 
voters. 


120 


Jordan says that Charles Jones was challenged be¬ 
cause he had been arrested by Captain Grossman, under 
military authority, some eight or ten years before that 
time, but had never been confined in jail. 

Jordan, p. 948. 

John V. Brown, a challenger at that precinct, states 
that he challenged Charles Jones on the ground of his 
being a convict; that lie failed to produce a pardon, and 
that Mr. King (an inspector) told him to stand off and 
let others vote, and that he would take advisement in 
the case. 

Brown, p. 154. 

King states that a man named Charles Jones was chal¬ 
lenged, and was asked whether or not he had been con¬ 
victed of a felony. He answered that he had been, and 
that upon his being asked if he hrd ever obtained a par¬ 
don, he answered that he had not. 

King, p. 148. 

This testimony shows conclusively that Jones was not 
a legal voter. 

Jordan states that Rossom Young was not allowed to 
vote. 

Jordan, p. 948. 

John Y. Brown states that to his knowledge the said 
Rossom Young removed from another county in the 
month of August before the election ; that he refused to 
take the oath and retired; that he came back the second 
time, and when the managers told him the penalties if 
he took the oath and swore falsely, he went off* again 
and soon returned with a Mr. Fowler, a United States 
deputy marshal, to see that, he did vote, and that he then 
took the oath and voted. 

Brown, p. 154. 

It is thus seen that Jordan was mistaken in his state¬ 
ment as to the cause of Charles Jones’ challenge, and 


121 


also as to the fact that Eossom Young was illegally pre¬ 
vented from voting; and as it nowhere appears that Ben¬ 
jamin Jordan and Henry Simpson were legal voters, the 
testimony of Jordan in regard to the matter amounts to 
nothing. 

Besides, C. E. King, an inspector, states that no per¬ 
sons were precluded from voting at said precinct be¬ 
cause they wanted to vote the republican ticket, and that 
every man voted as he pleased without let or hindrance. 
King, p. 148. 

The contestee, in his answer, alleges intimidation at 
precinct No. 4, probate office, and at the court-house 
precinct No. 1; and it will be seen by a careful refer¬ 
ence to the testimony, that there is an utter failure to 
prove intimidation at either. 

Without having alleged it in his answer, the contestee 
attempts to show that William McNish, Stephen Thom¬ 
as, Joe Simmons, Joe King, and Thomas Boyd (all col¬ 
ored men) were on the 17th of October (which was sev¬ 
eral weeks before the election) compelled, by threats and 
intimidation, to promise to vote the Democratic ticket 
by Joel Niblack, Elias Osteen, Zack McKinney, and 
Johnson McKinney; and for this purpose William Mc¬ 
Nish, Stephen Thomas, and Joe Simmons are introduced 
as witnesses. 

William McNish testifies that when Niblack and his 
party halted the witness and his party on the road at 
about a quarter of an hour to sunset, on the 17th of Oc¬ 
tober preceding the election on the 7th of November, 
1876, that they were marched across the woods until it 
was dark, when they stopped, when they took Joe King 
into the woods with a rope around his neck, and went 
out of hearing with him, and remained about a quarter 
of an hour—or, it may be, a half hour—and came back 
with a rope around Joe King’s neck, when Niblack said 
16 


122 


he had concluded to spare their lives, and would put it 
to the vote of his crowd. 

McKish, pp. 935, 936. 

MeKish then states that the vote was first taken in his 
case, and all voted to spare him; and that they then 
voted on the other boys, and cleared all but Joe King 
by their first vote ; that King then commenced talking 
to Kiblack, who told him not to talk to him, but to the 
two who had voted against him, whereupon King com¬ 
menced talking to the two McKinneys; and Johnson 
McKinney said he did not know whether he could let 
him loose or not, as he had called his brother-in-law a 
liar the other day; and after King had begged them a 
little longer, they put it to another vote, and all but 
Zack McKinney voted to spare him ; that they then sat 
down again, and King commenced talking to Zack Mc¬ 
Kinney, who told him that if he would never call any of 
his people a liar again, he would vote to save him, and 
King promised, when they all voted to spare him. 

McKish, p. 936. 

McKish swears, that after they had voted to spare all 
of them, Stephen Thomas commenced thanking them, 
when Niblack told him to “ hold on, we are not done 
yet,” and said we have another proposition to make to 
you; that he said about fours years ago, old Gilbert 
Wood had stolen a bag of cotton from his uncle, and if 
they would go up there and help him to kill Wood and 
swear them out of it, they would turn them loose, and 
that they all said they would go and help him, and some 
of the boys said if he would give him a gun he would go 
right in and shoot him, to which Niblack replied, “you 
are too willing, we might give you the gun to shoot old 
man Gil., and you might turn around and shoot us,” 
and Kiblack then said we had better not go to old man 
Gil. Wood’s. 

McKish, p. 936. 


128 


It is clear, from McHish’s own statement, that the 
proposition to kill Wood, was, at the worst, only a grim 
jest, and that Hiblack had not the remotest idea of put¬ 
ting.it in execution. 

How after all this had occurred, McHish swears that 
Hiblack said he had another proposition to make to 
him, and that was, if they would join the democratic club 
and fetch over five men apiece, and promise never to 
tell what was done to us that night, they would turn us 
loose, and said that if we told it outside of ourselves, 
they would kill us if it took twenty years to do it, and 
witness says that they made them promise so many 
things, that he don’t remember all of them. 

McHish, p. 986. 

How it is manifest, from McHish’s own tstimony, that 
Hiblack and party had, by a unanimous vote, decided to 
spare McHish and all his party before anything was said 
about their voting with the democrats, and it clearly ap¬ 
pears, from the statement of McHish, that the arrest of 
his party (however unlawful it may have been) was for 
another and quite a different cause. 

Thomas Boyd, one of the colored men in question, 
swears, that the whole trouble was in regard to a hog, 
which Joe King, another one of the party, was accused 
of stealing, and that when McHish told all he knew 
about the hog, Hiblack was satisfied. 

Boyd, pp. 161, 162, 168. 

Boyd says that McHish being frightened, made the 
first proposition in regard to voting the democratic ticket, 
and told Hiblack that he would vote with him and say 
nothing about it, and would not say he forced him to 
vote. Boyd further states that they all promised him to 
vote; but that Hiblack told them afterwards at different 
times that he did not hold them responsible for their 
votes. Boyd, p. 161. 


124 


Boyd also swears that he voted the democratic ticket 
freely, and not through fear of Niblack, or any of his 
party who were w T ith him. 

Boyd, p. 162. 

Boyd further swears that the promise-made was that 
“ we would aid and assist the honest people in the neigh¬ 
borhood, in putting down the stealing that was going on 
there, and in bringing offenders to justice; and that when 
that promise was made, Niblack was satisfied.” 

Boyd, p. 163. 

According to the testimony of McNish, it was decided 
to spare the four colored men, by the unanimous vote of 
Mblack and his party, before any thing was said about 
voting. 

According to the testimony of Thomas and Simmons, 
they were spared on the condition that they would vote 
with the democrats at the election, &c. 

Thomas, p. 942 ; 

Simmons, p. 943. 

I will now undertake to show, that aside from any dis¬ 
crepancy in their statements, the testimony of MoNish, 
Thomas, and Simmons is wholly unworthy of credit. 

A careful examination of the testimony of McNish, 
Thomas, and Simmons, in connection with the testimony 
of Boyd, Whetstone, Shumans, Downing, McClure, Am- 
zie, Gregg, and Murray Melsish, will show that politics 
had nothing to do with the arrest of the parties in ques¬ 
tion ; and that their promise to vote the democratic 
ticket was not the condition upon which they were re¬ 
leased; and that whatever promise they may have made 
in regard to their voting was voluntary, and not by com¬ 
pulsion ; and that, in fact, McNish. Thomas, Simmons, 
and Boyd had concluded to vote with the democrats some¬ 
time before they were arrested by Kiblack and his party 
on the road. 

Boyd testifies that he told Lites sometime previous to 


/ 


125 


the time they met Niblack and his party, that he, (the 
witness) might make up his mind to vote the democratic 
ticket. 

Boyd, p. 162. 

Stephen P. Shumans testifies that he was a justice of 
the peace in Columbia County; that Wm. McNish was 
his constable ; that they were related by marriage, and 
have ever been friendly and intimate; and states that he 
and McNish had a good long talk in reference to the 
election, about the last of September, when they both 
said that if the Republicans did not do better, they 
would vote with the Democrats; and that when McNish 
became a member of the Democratic club he made an 
address in which he said he was going to try another 
party, and if it did not suit him, he would try some 
other party; and also said that no one had persuaded 
him to join the Democratic party, and that he did it of 
his own free will and accord. 

Shumans, p. 156. 

Whetstone states that he had frequent conversations 
with Stephen Thomas and Wm. McNish before the elec¬ 
tion in regard to how they intended to vote, and that 
McNish said he would come out and proclaim himself a 
Democrat, if it were not for fear of his own color; that 
this was early in September, and that he had conversa¬ 
tions about or before that time with Stephen Thomas, 
Joe Simmons, and Thomas Boyd, who told him that 
they intended to vote the Democratic ticket. 

Whetstone, pp. 158, 159. 

Joseph Downing testifies that about the last of July 
he had a conversation with William McRlsh, in which 
he said he liked Governor Drew very much, and thought 
he would vote for him at the election. Witness says 
he also talked to Stephen Thomas, who appeared to be 
undecided, and said he thought his people had better try 
another party, and see if they could not do better than 


126 


they had been doing. This was in July; Thomas was 
in his employ. Witness says he had frequent conversa¬ 
tions with Stephen Shumans before the election, who 
said he had decided to vote the Democratic ticket and 
work with the party. 

Downing, pp. 163, 164. 

The testimony referred to shows that Wm. McNish, 
Stephen Thomas, Thomas Boyd, and Joe Simmons con¬ 
templated voting the Democratic ticket more than a 
month before they were arrested by Niblack; and, as 
corroborating this fact, I invite the attention of the com¬ 
mittee to the testimony of the following witnesses : 

Amzie, pp. 159, 160 ; 

Murray McNish, p. 165; 

Gregg, pp. 165, 166 ; 

McClure, pp. 166, 167. 

It is a fact which should not be allowed to pass with¬ 
out observation, that Joe King, the man who was ac¬ 
cused of stealing Niblack’s hog, and around whose neck 
McNish and Thomas say the rope was tied, has not been 
examined as a witness in this case, although the testi¬ 
mony shows he was in the county. 

I also ask the attention of the committee to the testi¬ 
mony of Wm. McNish and Stephen Thomas where they 
say that when they saw Niblack and the men who were 
with him, McNish said, “ When we meet them, boys, if 
they don’t say anything to us, don’t speak to them.” 

McNish, p. 935. 

Thomas, p. 942. 

Now, from this it is fairly and reasonably to be in¬ 
ferred that McNish was apprehending some trouble 
and, when taken in connection with the other testimony, 
we are led irresistibly to the conclusion that the trouble 
was about the stolen hog, and not about politics. 

It is respectfully submitted that there is an entire fail¬ 
ure to establish the fact that William McNish, Stephen 


127 


Thomas, Joseph Simmons, Thomas Boyd, and Joe King, 
or either of them, voted against their will through feaf 
or intimidation. 

The proof shows that no violence or intimidation was 
used in Columbia County, and that it was a fair and free 
election ; and, therefore, the contestee cannot claim that 
any of the precincts in said county should be thrown out 
of the count; and the whole question is narrowed down 
to this : Whether McHish, Boyd, Simmons, and Thomas, 
or ether of them, voted for the contestant through fear 
and against their will? It is confidently contended that 
the evidence has not made out such a case. 

The question in each case (says Judge McCrary) must 
he, has the great body of the electors had an opportunity 
to express their choice through the medium of the ballot, 
and according to law, and this question must be decided 
in the light of all the facts and circumstances shown in 
the evidence. 

McCrary, sec. 429, p. 327. 

It is very clear (says McCrary) that if, in the course of 
the investigation, it should become apparent that there 
was intimidation and violence sufficient to destroy the 
election, it would be the duty of the House to declare it 
void, even though no party to the contest has formally 
alleged that it was so. 

McCrary, sec. 424, p. 322. 

But if, on the contrary, it should appear, as in this 
case, that the election was fair and free, and that th e 
great body of the electors had the opportunity to express 
their choice through the medium of the ballot, then it is 
essential to allege in the notice or answer, as the case may 
be, the individual case in which violence or intimidation 
has been used, which has not been done in this case. 

It is, therefore, contended that, as the evidence does 
not show that any violence or intimidation was used at 


128 


either the Probate-office precinct No. 4, or at the Court¬ 
house precinct No. 1, it was essential that the contestee 
should have specifically alleged, in his answer, that Wil¬ 
liam McNish, Stephen Thomas, Joe Simmons, and 
Thomas Boyd had been coerced by threats and intimida¬ 
tion to vote for the contestant, and that a sufficient num¬ 
ber were compelled to vote against their will to have 
changed the result. 

McCrary, secs. 416-417-430. 

It will be seen by an examination of the record in this 
case, that the contestee has neither alleged, or proved, 
that a sufficient number have been forced to vote against 
him contrary to their will to change the result or render 
it doubtful. 

The contestee attempts to prove that one Lewis Nib- 
lack was under age, and that he voted the democratic 
ticket, and for this purpose he only introduces two 
witnesses—to wit, Edward Hall and Mary Jones. 

It will be seen by reference to Hall’s testimony that it 
is altogether hearsay evidence, and proves nothing. 

Hall, pp. 476-477. 

Mary Jones states that Lewis Niblack is eighteen years 
of age, and that she herself is thirty years old. If this be 
true, then she must have borne Lewis when she was only 
twelve years old, which is very improbable. She also 
states that Mrs. Hall had a child, between whose age and 
that of Lewis, her son, there was only one night’s differ¬ 
ence; and yet, according to her testimony, she did not 
know Mrs. Hall until two or three years after Lewis 
was born. 

Mary Jones, p. 483. 

An examination of the testimony of these two witnesses 
will show that it is not proven that Lewis Niblack was 
under age ; nor is it proven that he voted at all. 

Hall, p. 477. 


129 

The contestee, in his answer, asks that fifty votes re¬ 
ceived and counted for the contesteant at the precinct 
known as North Jacksonville, Jacksonville west, Jack¬ 
sonville east, Brooklyn, and East Jacksonville and May- 
port, shall he deducted from said contestant’s vote on the 
ground that they were cast by foreigners and alien-born 
persons. 

Answer, p. 28. 

Remarking that it would have been more accurate, if, 
indeed, it was not essential, to have alleged that they 
were unnaturalized foreigners, I will proceed to examine 
the testimony offered to sustain the allegation. 

In support of this allegation in the answer, the con¬ 
testee produces the following twenty-seven witnesses, 
to wit: 

Frank Orally, p. 575 ; 

M. Mahoney, p. 575; 

John Higgins, p. 576; 

II. Van Dohhen, p. 576; 

Jno. Greeley, p. 577; 

Jos. Santo, p. 577; 

L. Chicony, p. 580; 

J. Grunthal, p. 581; 

M. C. Colton, p. 581; 

H. Grunthal, p. 582; 

Henry Peters, pp. 547, 548; 

P. P. Crolly, p. 549, 

Hugh Hearty, pp. 549, 550; 

Thos. Scales, p. 550 ; 

Jos. M. Michel, p. 551. 

J. Jacqumain, p. 551; 

C. K. Pacting, pp. 551, 552; 

Patrick Falon, p. 552; 

John Murphy, pp* 552, 553; 

Chas. Gephart, pp. 564, 565; 

Jacob Gumbinger, p. 582; 

17 


130 


Dennis Logan, p. 581; 

1ST. Strabel, p. 569 ; 

S. Benliser, p. 570 ; 

Wm. Rich, pp. 565, 556 ; 

H. Elkan, p. 569; 

Thos. B. Walsh, p. 570. 

From the testimony of these witnesses, it does not ap¬ 
pear how any of them voted for Congress, except Hugh 
Hearty, S. Benliser, Louis Chicony, and M. C. Coleton ; 
but it is shown that all of them were qualified voters ex¬ 
cept Charles Poetting, Patrick Falon, Herman Elkin, and 
Dennis Logan ; and it is shown that the said Logan did 
not vote. Neither Poetting, Falon, or Elkan were cross- 
examined by contestant’s counsel. 

Inasmuch as twent}^three of the above-named twenty- 
seven declined to answer how they voted, I deem it ap¬ 
propriate at this time to submit some authorities in re¬ 
gard to the secrecy of the ballot. 

It has been said by Judge McCrary in his admirable 
work on elections, that the chief reason for the general 
adoption of the ballot in this country is, that it affords 
the voter the means of preserving the secrecy of his vote, 
whereby he is enabled to vote independently and freely; 
aud that it is for this reason that the privacy is held not 
to be limited to the moment of depositing his ballot, but 
is sacredly guarded by the law for all time, unless the 
voter himself shall voluntarily divulge it. 

McCrary, sec. 194. 

Judge Cooley, in his treatise on Constitutional Limi¬ 
tations, expresses the opinion that inasmuch as the voter 
himself cannot be compelled to declare for whom he 
voted, it is but reasonable to conclude that others who 
may accidently, or by trick or artifice, have acquired 
knowledge on the subject, should not be allowed to tes- 


131 


tif3 r to such knowledge, or to give any information in the 
courts upon the subject* 

McCrary, sec. 195 ; 

Cooley on Con. Lim, pp. 506, 507. 

It it moreover laid down in McCrary on elections, that 
“ when the object is to exclude a vote as cast by a per¬ 
son not qualified to vote, it is necessary to show first, that 
the ballot was illegal. This being done, the person who 
cast it maj^ be compelled to answer as to the contents, or 
if he cannot be found, or fails to remember, the contents 
of such illegal ballot may be shown by circumstances.” 
McCrary, sec. 196, p. 142. 

But it is contended, that the contestee has failed to 
show that these were illegal voters, and this being the 
case, he will not be permitted to prove by the voters them¬ 
selves, or other witnesses how they voted, without their 
voluntary consent, tn regard to these voters, the con¬ 
testant relies on the argument already submitted in ref¬ 
erence to similar voters in Alachua County. 

Ante, p. 

The contestee asks that ten votes shall be deducted 
from the vote of the contestant at the Baldwin precinct, 
in Columbia county, on the ground that they were cast 
by non-residents of the county, and by minors and per¬ 
sons not registered* 

Answer, p. 23. 

Morris M. Moore is the only witness produced by the 
contestee to prove this allegation, and his testimony is 
limited to one single vote. He states that one Henry 
Young was a resident of the county of Baker, and that 
he voted the Democratic ticket at Baldwin, in Duval 
county, at the election on the 7th of November, 1876. 
He states that Young lived in Duval county in 1874 ; 
that witness was at Darbyville, in Baker county, in April, 
1876, and met Harry Young there; that he ceased to 


132 


work in Baker count} 7 the last of June, 1876, when he 
went to Maxville, in Duval county. 

Moore, p. 560. 

Moore also states that he was present when Young 
was registered as a voter in Duval county, about the mid¬ 
dle or last of October, and that he took the registration- 
oath. 

Moore, p. 562. 

This witness further says that Harry Young voted in 
Baker county in 1874, and that he then swore his vote 
in ; that when he offered to vote at Baldwin, in Duval 
county, at the election in 1876, witness challenged his 
vote, and he swore his vote in. 

Moore, pp. 560, 561, 562. 

I will here remark that all Moore’s statements in re¬ 
gard to Young’s declarations before the election, are 
purely hearsay in their character, and are not admissible 
as evidence. 

The true and only question to be decided in regard to 
the vote of Henry Young is not whether he was residing 
in Baker county within six months previous to the elec¬ 
tion, but where was the place of his permanent abode dur¬ 
ing that time ? 

It appears that Young was a hired laborer, and that 
he worked for some time at different places in the county 
of Baker from some time in 1874 until he returned to 
Duval county in 1876. It also appears that Young lived 
in Duval county until sometime in 1874, when (as Moore 
states) he went to Baker county. 

Now in view of the established facts, that Young was 
registered in Duval County, and that when his vote was 
challenged by Moore he took the required oath, and, 
among other things, swore that he had resided in Duval 
County six months preceding the election, and that the 
last time, Moore testifies, that he saw Young in Baker 


183 


County was in April, 1876, which was more than six 
months before the election. It is submitted, that Moore’s 
testimony (much of which is hearsay) is not sufficient to 
establish the fact, that Young’s place of 'permanent abode 
was in Baker County or that he did not return to Duval 
County six months before the election. 

The witness, Moore, says, that at the election in 1874, 
he took Young up to vote at Sanderson, in Baker County, 
that his name was not on the registration list of that 
county, and that Young swore his vote in, and if Moore 
had been assured that Young would vote the republican 
vote, I make no doubt but that he would have rendered 
him the same assistance at Baldwin, at the election in 
1876, which he did at Sanderson. 

If Young’s permanent home was in Duval County, 
and he was a legal voter in that county, he is not dis¬ 
qualified by a temporary absence in Baker County, and 
by his being there admitted to vote, ^his general doc¬ 
trine is stated by McCrary to be correct. He also says 
“that if a person is clearly a resident of and a legal 
voter in one place, and is improperly and illegally per¬ 
mitted to vote at another, that fact alone will not dis¬ 
qualify him from continuing to vote at the place of his 
actual residence” (or, in the language of the Constitu¬ 
tion of Florida, at the place of his permanent abode). The 
author then adds: “But it is proper to observe, in this 
connection, that if there is any doubt as to which of two 
places is the home or residence of the voter, the fact 
that he has, within a recent period, voted at one of such 
places would be very strong evidence that he had de¬ 
cided for himself to make his home where he cast his 
vote; and if a person is residing at a particular place, 
and there is doubt as to whether he is residing there 
temporarily, and claiming another place as his home: if 
he claims and exercises the right to vote at the place 


134 


where he is for the time residing, that fact ought to be 
regarded as evidence well nigh conclusive that lie has 
abandoned his former residence, and determined to 
make his home where he claims his vote. 17 

McCrary, sec. 34. 

I have cited the foregoing authority, both as it makes 
for and against the contestant, but contend that as there 
is no contest as to the legality of Young's vote in 1874, 
and as it may be considered doubtful where his place of 
permanent abode was in 1876, the way is opened up for 
a fair application of that part of the citation which makes 
in favor of the contestant. And as the legality of Young’s 
vote cast in 1876 is alone in question, the fact that he 
was registered in Duval county and voted there, swear¬ 
ing in his vote, should be accepted as strong evidence 
that his permanent home was in that county, or at least 
that he had returued to that county six months before 
the election. 

It may be true that Moore did not know of Y oung’s 
return to Duval county until June, 1876; and yet, from 
all that appears in the evidence, it may also be true that 
he returned very soon after Moore had seen him at 
Darbyville, in April, 1876, and six months before the 
election. 

It is contended that Young had a prima facia right to 
vote in Duval county at the election in 1876, and that 
Moore’s testimony, when carefully weighed and con¬ 
sidered, is not sufficient to overcome the presumption. 

The contestee examines Philip Walter as a witness to 
prove that Aaron Isaacs and one William Monroe were 
not qualified Voters, and that they voted at the precinct 
of Jacksonville west. 

Walter testifies that he saw them both vote at said pre¬ 
cinct ; that they voted the full democratic ticket, and that 
they voted for Jesse J. Pinley, who was the democratic 


135 


candidate for Congress for the Second district of Florida. 

Walter, p. 539. 

It will be seen from the testimony that said witness 
swears positively to the fact, which he says he witnessed 
in person ; and yet, in another place in his testimony, he 
swears that Isaacs told him he voted the democratic ticket, 
and that he did not know that he had so voted in any other way 
than as Isaacs had told him. 

Walter, p. 558. 

I do'not mean even to intimate that Mr. Walter would 
deliberately swear to a statement that was false, and I 
only invite attention to it to show that he was mistaken, 
and being so mistaken in regard to so important and 
material a fact, it brings the whole of his uncorroborated 
testimony under the suspicion that it is not free from 
similar mistakes. 

He says he knew of his own personal knowledge that 
Isaacs had not resided in the State of Florida three 
months, knowing when he came here and from his own 
say so. 

Walter, p. 539. 

The statement of the witness as to Mr. Isaacs’ “ say so ” 
is mere hearsay, and not admissible as evidence ; and 
now I ask how could the witness know of his own pdrsonal 
knowledge , (as he states he did) that Isaacs had not been 
in the State three months? Mr. Walter is the intelli¬ 
gent clerk of the highest Federal court in Florida, and 
should have more carefully home in mind the distinction 
between testifying from personal knowledge and informa¬ 
tion derived from hearsay —a distinction which, as an offi¬ 
cer of that high tribunal, he could scarcely have failed to 
learn. 

He could not know, of his own personal knowledge , that 
Isaacs had not been in the State three months, unless he 
had the power of ubiquity, so as to be present at all 


136 


parts of the State at the same time. So here is another 
instance of a grave mistake into which this witness has 
fallen, which greatly increases the probability that he 
was also mistaken in concluding that William Monroe 
had not been in the State twelve months next preceding 
the election ; and if he had been there that long, he may, 
from aught that appears in the testimony, have “ de¬ 
clared his intention” in a State court, and may have pro¬ 
duced evidence thereof to the election officers of the pre¬ 
cinct where he voted. 

Indeed, as has already been shown in a former part of 
this argument. “ It is quite settled that where one who 
is alien born has voted at an election, the law presumes 
that he has been naturalized, until the contrary appears.” 

McCrary, sec. 294. 

How, it has not been shown otherwise than inferent- 
ially that Monroe was foreign born, nor has it been 
shown that he voted without producing evidence of his 
declaration of intention; or that he could not have done 
so if required. 

The witness, Mr. Walter, who is shown to be so liable to 
make mistakes, may have been mistaken in his recollec¬ 
tion of Monroe’s conversation in regard to the time he 
had come to Florida, and it will be remembered that the 
statements of a witness attempting to detail former con¬ 
versations are to be received with very great caution. 

The contestee has attempted to prove that there were 
ballots cast for the contestant at some of the precincts in 
Duval County, which had been numbered and given to 
colored voters for a purpose which was violative of the 
freedom of the ballot. 

It would be quite sufficient to say that there is no al¬ 
legation in his answer to authorize the introduction of 
such testimony, and that, consequently, it is not the duty 
of the committee to consider it; and while I insist 


/ 


137 

upon this objection, I beg to say, that if the committee 
are disposed to take the trouble to look into the testi¬ 
mony thus ottered, they will see that the only testimony 
which would have been admissible under the rules of 
evidence, goes to prove that the ballots in question were 
numbered because the persons to whom they were given 
wished it to be done. 

James H. Paine, a witness introduced by the contes_ 
tee, swears that as a member of the Democratic State 
Executive Committee, he had pledged the colored men 
who should vote the democratic ticket, that they should 
be protected from violence with which they had been 
threatened, and that it was for this purpose that he wished 
to know personally what colored men were entitled to 
claim protection. This witness also states that instances 
came to his knowledge, and was also generally reported 
throughout the State, that colored persons who claimed 
to desire to vote the democratic ticket were threatened 
with violence by their own color. 

Paine, pp. 567, 568. 

Henry A. L’Engle, another witness introduced by the 
contestee, swears that the numbers on the ballots placed 
on the memoranda mentioned in his testimony, were put 
upon them to designate to whom such tickets were de¬ 
livered, and that all of such tickets as he gave out was for 
that purpose. Witness says he wanted to know how they 
voted, and that they wanted the witness to know. Witness 
also states that the parties to whom these marked tickets 
were given, were not, to his knowledge, laborers or em¬ 
ployes of democrats; that he distributed some of them 
himself, but they were distributed to independent men 
who worked for themselves. 

L’Engle, p. 571. 

If the committee will take the time to examine the 
testimony ot Horatio Jenkins, Edwin Higgins, Philip 
18 " 


138 


Walter, T. V. Cashen, and R. P. Moody, the other wit¬ 
nesses examined by the contestee on this point, they will 
find that it is, for the most part, merely hearsay evidence, 
and is altogether loose, uncertain, and conjectural; and 
I here distinctly affirm that it is no where proved that one single 
person cast a marked ballot for the contestant , from the fear 
that he would be discharged by his employees, if he did not. 

There is no statutory provision in Florida, as there is 
in some of the other States, prohibiting the marking of 
ballots. The Constitution of Florida simply provides 
that the vote shall be by ballot. The purpose of this 
Constitutional provision is doubtless to protect the se¬ 
crecy of the ballot, so that the voter may be placed above 
and beyond the reach of improper influences or restraint 
in casting his ballot. But, says Judge McCrary, the 
Constitutional requirement that the vote shall be by bal¬ 
lot should have such a reasonable construction as will 
tend to secure these important results. 

McCrary, secs. 400, 403. 

I will only add that such a construction as would re¬ 
quire the exclusion of a numbered ballot without first 
showing that the person casting it did not do so freely, 
would not be a reasonable construction of the Constitu¬ 
tional requirement. 

In order to facilitate the Committee in turning to the 
testimony of Jenkins, Higgins, Walter, Cachen, and 
Moody, if they desire to examine it, I give a convenient 
reference to the same : 

Jenkins, pp. 553, 554. 

Higgins, pp. 554, 555, 556. 

Walter, pp. 556, 557, 558. 

Moody, pp. 562, 563, 564. 

Cashen, p. 572. 

In the argument of this case, I have considered it my 
duty, even at the risk of being thought tedious, to pre- 


139 


sent not only all the points made in the pleadings, but 
also those which the contestee has attempted to make 
outside of the allegations in his answer, and believe I 
have omitted nothing. I have endeavored to argue all 
the questions fairly ; and if in any instance I have failed 
in doing so, the Committee will not fail to detect and 
supply the omission. 

Believing, as I do, that I have been fairly elected as a 
member of the 45th Congress, by a majority of the hon¬ 
est, legal votes of the district which I claim to repre¬ 
sent, I recognize it as a duty which rises far above all 
personal considerations, to prosecute this contest. 

Having now concluded, I submit the case, with the 
confident assurance that the committee will give it a 
careful and patient investigation, and by their report de¬ 
termine what is right and just in the premises. 

Respectfully submitted, 

J. J. FINLEY, 

Contestant. 












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